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INTRODUCTION 


TO  THE  STUDY  OF 


[NTERNATIONAL  LAW. 


DESIGNED  AS 


AN  AID  IN  TEACHING,  AND  IN  HISTORICAL  STUDIES. 


BY 


z 


THEODORE  D.'WOOLSEY. 


FIFTH  EDITION  REVISED  AND  ENLARGED. 


NEW  YORK: 

CHARLES  SCRIBNER’S  SONS, 


1888. 


Entered  according  to  Act  of  Congress,  in  the  year  1871,  by 
CHARLES  SCRIBNER  & CO., 

In  the  Office  of  the  Librarian  of  Congress  at  iVashington. 


Entered  according  to  Act  of  Congress,  in  the  year  1871,  by 
SCRIBNER,  ARMSTRONG  & CO., 

In  the  Office  of  the  Librarian  of  Congress  at  Washington. 


CoPTaiGHT,  1878, 

Br  CHARLES  SCRIBNER’S  SONS. 


RIVERSIDE,  CAMBRIDGE  : 
ELECTROTTPED  AND  PRINTED  BY 
H.  0.  BODGHTON  AND  COMPANY. 


To 

THE  MEMBEES  OE  THE  INSTITUT  DE  EEOIT  INTEEN ATIONAL, 


THIS 

FIFTH  EDITION  OF  HIS  INTRODUCTION  TO  THAT 

STUDY  IS 

BY  THEIR  COLLEAGUE, 

THE  AUTHOR. 


PREFACE  TO  THE  FOURTH  EDITION. 


The  first  edition  of  this  work  appeared  in  1860,  and  the 
second,  with  much  new  matter  and  some  changes  of  order,  in 
1864.  A third  in  1871,  besides  other  additions,  was  enlarged 
by  an  important  supplement  to  the  second  Appendix,  bringing 
the  list  of  treaties  down  as  nearly  as  possible  to  the  time  of 
publication,  and  by  a third  Appendix  containing  notes  on  top- 
ics either  briefly  spoken  of  in  the  body  of  the  work  or  newly 
brought  into  prominence  during  the  war  of  the  rebellion. 
The  fourth  edition  now  follows,  in  which  quite  a number  of 
corrections,  more  or  less  important,  are  introduced  into  the 
main  text ; an  addition  is  made  to  the  list  of  writem  on  inter- 
national law,  and  of  collectors  of  diplomatic  documents; 
the  treaties  are  brought  down  to  the  present  time ; and  the 
third  Appendix  is  closed  by  a note  discussing  the  case  of  the 
Virginim. 

In  regard  to  corrections,  the  reader  is  referred  to  §§  55,  58, 
122,  152,  and  163  as  containing  the  principal  ones ; and  he  is 
requested  also  to  consult  the  notes  in  the  third  Appendix  in 
connection  with  the  text  to  which  they  relate.  It  would  have 
suited  both  writer  and  reader  better  to  have  had  these  notes 
inserted  in  the  text,  but  stereotype  plates  put  books  into  a 
strait-jacket  Avhich  it  is  hard  to  throw  off. 

The  title-page  describes  this  Avork  so  aptly  that  a few 
words  only  need  to  be  used  in  regard  to  its  plan  and  object. 
The  author  had  been  engaged  for  a number  of  years  in  teach- 
ing international  law  and  in  giving  lectures  on  history.  The 
forAvard  movement  of  this  law  over  the  world,  the  possibility 


VI 


PREFACE  TO  THE  FOURTH  EDITION. 


of  a universal  law  of  nations,  spreading  itself  like  the  univer- 
sal Gospel  over  mankind,  was  the  thought  of  greatest  interest 
attending  on  the  study.  Naturally  the  historical  treatment 
suggested  itself,  so  that,  while  positive  law  took  the  first  place, 
with  justice  going  by  its  side,  to  serve  as  standard  and  monitor, 
the  history  of  the  science,  of  its  advances,  its  fixed  points,  its 
uncertainties,  was  never  left  out  of  sight.  The  list  of  politi- 
cal treaties  in  the  second  Appendix,  which  a student  in  this 
country  could  not  conveniently  find  elsewhere,  will,  it  is 
hoped,  throw  light  on  the  body  of  the  work,  and  make  some 
of  the  historical  references  more  intelligible. 

The  method  pursued,  of  itself,  points  out  the  class  of  readers 
to  Avhom  the  work  is  addressed.  It  is  not  intended  principally 
for  lawyers,  but  for  young  men  of  liberal  culture,  in  prepara- 
tion for  any  profession  or  employment,  who  need  the  enlai’g- 
ing  influences  of  a study  like  this  ; Avho,  in  a republic  like  ours, 
are  in  a degree  responsible  for  the  measui’es  of  the  govern- 
ment, and  therefore  ought  to  know  what  is  acknoAvledged  jus- 
tice between  state  and  state. 

In  concluding  this  preface  the  author  may  be  permitted  to 
say  that  he  is  conscious  of  no  bias,  national  or  other,  in  his 
exhibition  of  the  science.  The  United  States,  on  the  Avhole, 
have  had  an  honorable  diplomatic  history,  partly,  perhaps,  if 
not  mainly,  OAAung  to  their  being  removed  from  the  close  inter- 
course and  mutual  jealousies  of  the  nations  of  the  Old  World. 
Yet  Ave  liaA’e  done  Avrong,  and  in  this  Avork  there  has  been  no 
hesitation  to  condemn  such  wrong  where  it  seemed  to  exist. 
And  such  ought  ever  to  be  the  practice  of  a good  citizen. 


New  Haven,  June  1,  1874. 


PREFACE  TO  THE  FIFTH  EDITION. 


In  this  edition,  which  is  doubtless  the  last  that  the  author 
will  live  to  superintend,  the  whole  work  has  been  carefully  re- 
vised ; much  neAV  matter  has  been  added ; the  sections  relating 
to  private  international  law,  in  the  strict  sense  of  the  term, 
have  been  suppressed ; and  the  notes  and  discussions  in  the 
third  Ap}>endix  of  the  third  and  fourth  editions  have  been  in- 
serted in  the  text,  either  as  parts  of  it  or  as  annotations.  For 
certain  notes  in  which  the  letters  T.  S.  appear,  I am  indebted 
to  a friend,  wlio  has  used  the  book  in  his  instructions,  and  has 
kindly  placed  them  at  my  disposal. 


New  Haven,  November^  1S78. 


CONTENTS. 


INTRODUCTORY  CHAPTER. 

DEFINITION,  GKOWTH,  JURAL  AND  MORAL  GROUNDS,  SOURCES  OF  INTERNA- 
' TIONAL  LAW. 

§ 1,  2.  A law  of  action,  for  states  as  for  individuals,  founded  iu  justice. 

§ 3,  4.  International  law,  what  in  a wider  sense  ? 

§ 5.  Actual  international  law,  what? 

§6.  Its  genesis  and  voluntary  nature.  It  is  of  later  growth  than  state  law. 

§ 7.  AVhy  it  arose  in  Christian  states. 

§ 8.  Quite  imperfect  elsewhere.  Illustrations  of  this  from  Greece  and 
Rome.  Not  true  that  these  nations  had  no  international  law.  Its 
slow  growth  in  mediaeval  Europe. 

§ 9.  Names  given  to  this  science.  Not  the  same  as  jus  gentium. 

§ 10.  Differs  from  /us  nnturale. 

§ 11.  Definition  of  Jus  naturale  by  Grotius. 

§ 12.  Puffeudorf  confonuds  /us  naturale  and  international  law. 

§ 13.  A reference  to  the  standard  of  justice  necessary  in  international  law. 

§ 14.  It  cannot  be  rc.solved  into  contract-obligation. 

§ 15.  Must  be  looked  at  both  as  a positive  law  and  iu  its  relations  to  jus  and 
morals  Its  jural  grounds. 

§ IG.  Its  moral  grounds. 

§ 17.  Particular  rights  and  obligations  of  nations. 

§18.  Observations  on  certain  rights.  (1.)  The  right  of  reputation. 

§ 19.  (2.)  The  right  of  redress. 

§ 20j.  (3.)  Is  there  a right  of  punishing  other  states? 

§ 205.  Obligation  of  states  to  aid  justice  outside  of  their  own  bounds. 

§21.  (4.)  Is  there  a right  of  conquest? 

§ 22.  Moral  relations,  or  duties  and  moral  claims  of  states. 

§23.  Observations  ( n certain  duties.  (1.)  Humanity. 

§ 24.  (2.)  Comity. 

§ 25.  (3.)  Intercour.'C. 

§ 26,  27.  Vattel’s,  Wheaton’s,  and  other  divisions  of  international  law. 

§ 28.  Custom  and  free  assent  alike  sources  of  international  law.  Thus  moral 
claims  become  rights. 


X 


CONTENTS. 


§ 29.  International  law  adopted  by  municipal. 

§ 30.  Aids  for  ascertaining  what  international  law  is. 

§31.  Stages  in  the  develo])ment  of  international  law. 

§ 32.  hlinor  di.Terences  in  the  views  of  different  nations  concerning  it. 
§ 33.  Uncertainty  and  want  of  authority  in  international  law. 

§ 34.  Importance  of  the  history  of  international  law. 

§ 35.  Method  pursued  in  this  work. 


PART  I. 

THU  ESSENTI.4L  POWERS  OF  STATES  AND  THEIR  RIGHTS  AND  OBLI- 
GATIONS, ESPECIALLY  IN  A STATE  OF  PEACE. 


CHAPTER  I. 

RIGHTS  OF  STATES  AS  INDEPENDENT  SOVEREIGNTIES.  RULE  OF  NON-INTER- 
FERENCE AND  ITS  EXCEPTIONS. 

§ 36.  A state,  what  ? Pirates  no  state. 

§ 37.  Essential  attributes  of  a state.  Sovereignty,  independence,  equality,  all 
included  in  sovereignty.  May  he  parted  with  by  confederated  and  by 
jirotected  states. 

§ 38.  Obligations  not  affected  by  change  of  government. 

§ 39.  All  forms  of  government  legitimate  in  the  view  of  international  law. 

§ 40.  It  knows  only  governments  de  facto. 

§ 41.  Same  subject  continued. 

§ 42.  As.sistance  to  provinces  in  revolt  unlawful,  but  aid  to  another  state 
against  rebellion  lawful. 

§ 43.  Non-interference  the  rule,  but  with  e.Nceplions.  Interference  when  jus- 
tified. 

§ 44.  Interference  to  jireserve  the  balance  of  power. 

§ 45.  Historical  illustrations  of  such  interference. 

§ 46.  Interference  to  prevent  revolutions. 

§ 47.  Instances  of  such  interference  in  the  French  revolution.  The  Holy  Al- 
liance. Congress  of  Troppau-Laybach.  Congress  of  Verona. 

§ 48.  The  Monroe  doctrine. 

§ 49.  Results  of  an  attemjjt  to  establish  a law  of  interference  in  the  internal 
affairs  of  states. 

§ 50.  Interference  in  the  Belgic  revolution  of  1830. 

§ 51.  Interference  on  the  score  of  religion  and  humanity. 

§ 52.  Equality  of  states.  Their  rank.  Existing  rules  of  rank.  These  dis- 
tinctions fading  out. 


CONTENTS. 


XI 


CHAPTER  11. 

TERRITORIAL  RIGHTS  OF  STATES  AND  RIGHTS  OP  PROPERTT.  STRICT  EIGHT 
RENOUNCED  IN  THE  USE  OF  NAVIGABLE  WATERS. 

§ 53.  Property  of  states  what,  in  international  law  1 

§ 54.  Consent  of  inhabitants  of  transferred  territoiy  sometimes  asked. 

§ 55.  Modes  of  acquiring  territory. 

§ 56.  What  is  included  in  territory. 

§ 57.  National  character  of  the  coast-sea. 

§ 58.  Are  vessels  on  the  sea  territory  1 

§ 59.  Freedom  of  the  high  seas  and  of  fishery  there.  Fishery  question  be- 
tween Great  Britain  and  the  United  States,  until  its  settlement  by  the 
treaty  of  1854. 

§ 60.  Claim  of  exclusive  control  over  certain  waters.  (1.)  Bays.  (2.)  Gulfs. 

§61.  (3.)  Straits  and  inland  seas.  The  Danish  straits.  The  Black  Sea  and 

its  entrance. 

§ 62.  (4.)  Rights  over  river  navigation.  Rule  of  Congress  of  Vienna.  The 
Rhine.  The  Scheldt.  The  Danube  by  the  treaty  of  Paris.  The 
Mississippi.  The  St.  Lawrence.  The  La  Plata  system  of  rivers.  The 
Amazon.  Other  streams. 


CHAPTER  III. 

RIGHTS  OF  INTERCOURSE.  RELATIONS  OF  FOREIGNERS  WITHIN  A TERRITORY 

OF  THE  STATE. 

§ 63.  Intercourse  of  states,  how  far  a right.  What  a state  may  not  do  re- 
specting intercourse. 

§ 64.  What  a state  may  do. 

§ 65.  Individual  aliens  entitled  to  protection.  Right  of  asylum,  of  innocent 
passage,  of  emigration. 

§ 66.  Relations  of  aliens  to  the  laws,  and  their  condition. 

§ 67.  Progress  of  comity  and  humanity  towards  aliens  illustrated.  Lh'oit 
d’aubaine. 

§ 68.  Exterritoriality,  its  limits  as  to  sovereigns,  ships  of  war,  armies  in  transit, 
vessels  in  French  harbors.  Treatment  of  vessels  driven  into  foreign 
waters  out  of  their  course. 

§ 69.  Exemptions  to  foreigners  in  certain  Eastern  countries. 

§ 70.  Aliens  parting  with  the  character  of  aliens.  Naturalization.  Rules  of 
several  nations  as  it  respects  naturalization. 

§ 71.  Domicil,  what  ? 

§ 72  Conflict  of  laws  as  to  a pariicular  person. 

§ 73.  Private  international  law,  what  1 Its  growth.  Its  leading  rules  show 
tendency  of  nations  to  similar  principles  of  law. 

§ 74.  Jural  capacity. 

§75.  Effects  of  foreign  judgments. 


Xll 


CONTENTS. 


§ 76.  Crimes  committed  in  a foreign  country. 

§ 77.  Criminals  escaping  into  a foreign  country.  Extradition. 

§ 78.  Extradition  continued. 

§ 79.  Political  crimes. 

§ 80.  Appendix.  Case  of  Martin  Koszta. 

CHAPTER  IV. 

THE  FORMS  AND  AGENTS  OF  INTERNATIONAL  INTERCOURSE. 

Section  I.  — The  Forms  of  Intercourse,  or  International  Courtesy. 

§ 81.  General  comity  between  nations. 

§ 82.  Respect  for  the  reputation  of  another  state.  The  Hulsemann  affair. 

§ 83.  Treatment  of  foreign  sovereigns,  etc.  Ceremonial  of  courts.  Diplo 
matic  correspondence  of  states. 

§ 84.  Ceremonial  of  the  sea.  Forms  of  politeness  there. 

§ 85.  Disputes  in  Cent.  XVII.,  concerning  ceremonies  at  sea. 

Section  II.  — The  Ayents  in  the  Intercourse  of  Nations;  or  Ambassadors  and 

Consuls. 

§ 86.  Persons  appointed  to  manage  the  intercourse  between  nations. 

§ 87.  Origin  of  the  privilege  of  ambassadors. 

§ 88.  Temporary  and  resident  ambassadors. 

§ 89.  Is  there  any  obligation  to  receive  ambassadors  7 
§ 90.  Right  of  sending  ambassadors. 

§ 91.  Privileges  of  ambassadors. 

1.  Their  inviolability. 

2.  Their  exterritoriality,  as  (1.)  Immunity  from  criminal.  (2.)  From 

civil  jurisdiction. 

§ 92.  Immunity  of  their  hotel  and  goods  — without  right  of  asylum  for  crim- 
inals. 

§ 93.  Freedom  from  imposts. 

§ 94.  Freedom  of  private  worship. 

§ 95.  Privileges  of  ambassador’s  family  and  train.  His  power  over  his  suite. 
§ 96.  Limits  of  his  immunity,  — ambassador  engaging  in  trade  — committing 
great  crimes. 

§ 97.  Relations  of  an  ambassador  to  a third  power. 

§98.  Rank  of  ambassadors, — ceremonial, — termination  of  their  mission. 

§ 99.  Consuls.  Origin  of  the  con.sular  office.  Consuls  of  the  Middle  Ages. 

§ 100.  Functions  of  consuls.  Their  jurisdiction  out  of  Christendom.  Their 
privileges  and  status.  Their  privileges  in  non-Christian  countries 
Who  can  serve  as  consuls. 


CONTENTS. 


xiii 


CHAPTER  V. 

OF  THE  RIGHT  OF  CONTRACT,  OR  OF  TREATIES  BETIVEEN  STATES. 

§ 101.  Of  contract  in  general,  especially  between  slates.  With  whom  can  states 
make  contracts  1 

§102.  What  treaties  are  lawful  ? ' 

§ 103.  Treaties  made  by  a limited  sovereign 

§ 104.  Treatic.s  procured  by  fraud,  falsehood,  or  force,  not  binding. 

§ 105.  Treaties  to  do  an  unlawful  thing  not  binding. 

§ 106.  Kinds  of  treaties. 

§ 107.  Treaties  of  alliance. 

§ 108.  Treaties  of  confederation. 

§109.  Treaties  of  guaranty.  Guaranti(sof  treaties.  Origin  of  guaranties  to 
treaties. 

§ 110.  Other  modes  of  confirming  the  faith  of  treaties.  Hostages.  Pledges. 
§111.  When  do  treaties  begin  to  be  binding? 

§112.  Violation  of  treaties. 

§ 113.  Interpretation  of  treaties.  Rejmguant  clauses  and  conflicting  treaties. 


PART  II. 

INTERNATIONAL  LAIV  AND  USAGE  IN  A STATE  OF  WAR. 


CHAPTER  I. 

OF  A nation’s  RIGHT  OF  SELF-DEFENSE  AND  REDRESS  OF  INJURIES  OR  OF 
■WAR,  CAPTURE,  AND  TREATIES  OF  PEACE. 

Section  I.  — Of  ]Vur. 

§ 114.  Of  w'ar  in  general. 

§ 1 15.  War  and  just  Avar,  Avhat  ? Who  is  to  judge  of  its  justice  ? Are  nations 
bound  to  resort  to  arbitration  ? Ought  an  ally  to  judge  ? 

§ 116.  Rightfulness  of  Avar.  For  what  may  Avar  be  undertaken  ? 

§ 117.  Defensive  and  offensh'e  war. 

§ 118.  Measures  for  redress  falling  short  of  AAar.  1.  Embargo.  Hostile  em- 
bargo. 2.  Retorsion.  3.  Reprisals.  Greek  and  Roman,  mediiEA'al 
and  modern  usage  as  to  reprisals. 

§ 119.  Pacific  blockade. 

§ 120.  Commencement  of  war.  Declaration.  Greek  and  Roman  practice. 
MediiEval  practice.  Modern.  Reasons  for  the  modern  usage. 

§ 121  Declaration  of  Avar  continued. 

§ 122.  What  notice  of  a state  of  war  ought  to  he  given? 


XIV 


CONTENTS. 


§ 12.3.  Effects  of  war.  Non-intercourse  with  the  eiicnit'.  License  to  trade. 

§ 124.  Enemy’s  property  within  a belligerent  country. 

§ 1 25.  Have  all  in  each  hostile  state  a right  to  wage  war  1 
§ 126.  Treatment  of  enemy’s  property  on  laud  and  sea  compared. 

§ 127.  Forces  employed  in  war,  especially  on  the  sea.  Privateers. 

§ 128.  Evils  of  ])rivatecring.  Testimony  to  these  evils.  Endeavors  to  stop 
it  by  treaty.  Declaration  of  Paris,  i85G.  Attitude  of  the  United 
States. 

§ 129.  Kestriciions  on  privateering  to  prevent  its  evils. 

SiccTio.v  II, — Iaiws  avd  Usages  of  War,  especialhj  on  Land. 

§ 130.  Laws  and  usages  of  war  somewhat  vague,  yet  improving.  Causes  of 
this  amelioration. 

§ 131.  Fundamental  rules  of  war. 

§ 132.  Petaliation. 

§ 133.  Special  rules.  (1.)  As  to  weapons  and  ways  of  injuring  an  enemy’s  per- 
son. (2.)  Allowable  weapons  in  war.  (3.)  Breach  of  faith.  Solici- 
tations to  crime. 

§ 134.  (4.)  Treatment  of  captured  persons,  especially  of  soldiers.  (5  ) Treat- 
ment of  irregular  troops. 

§ 135.  (6.)  Of  non-combatants  and  their  property.  Usages  of  the  Romans,  of 
the  Middle  Ages,  etc.,  of  the  Thirty  Years'  War,  of  the  time  of  Louis 
XIV.,  of  Frederick  the  Great,  of  the  English  in  the  American  war,  of 
Napoleon 

§ 136.  Summing  up. 

§ 137.  (7.)  Of  public  property. 

§ 138.  (S.)  Sieges  and  storms  of  forts  and  towns. 

§ 139.  Laws  of  war  on  the  sea. 

§ 140.  Commercia  belli. 

§ 141.  Spies. 

§ 142.  Attempts  to  ameliorate  the  practice  of  war  on  land.  The  Brussels  Con- 
ference. 

Section  III.  — Of  Civil  irar.s.  Wars  with  Savages,  Piracg,  and  the  Slave-trade. 

§ 143.  Civil  wars.  Wars  with  savages. 

§ 144.  Pirates  and  their  treatment. 

§ 145.  Arc  crews  of  rebels’  vessels  pirates'? 

§ 146.  Is  the  slave-trade  piracy  ? 

Section  IV.  — Of  Capture  and  Recapture,  Occupation  and  Recovery  of  Tetritory 

§ 147  Capture  in  general,  especially  from  enemies. 

§ 148.  Property  in  prizes,  how  and  when  begun  ? 

§ 149.  Complete  title  given  by  a court. 

§ 150.  Ransom  of  captured  vessels.  Hostages  to  secure  ransom. 

§151.  Recajiture.  Rights  of  the  original  owner.  Jus  posiliminii. 

§152.  Rewards  for  capture  and  recapture.  Salvage.  Its  amount. 

§ 153.  Effects  of  temporary  conquests. 


CONTENTS. 


XV 


Section  V.  — Of  the  Suspension  and  Close  of  War,  especiall//  of  Truce  and 

Peace. 

§ 154.  Intercourse  in  war,  (1.)  For  the  purposes  of  war. 

§ 15.5.  (2.)  Licenses  and  safe  conducts. 

§ 156.  Truce  or  armistice. 

§ 157.  Time  wlicu  a truce  licgins.  End  of  a truce. 

§ 158.  Peace,  what?  Of  treaties  of  peace  in  general  Language  used  in 
treaties. 

§ 159.  Eestrictions  on  the  power  to  make  peace. 

§ 1 60.  Effect  of  treaties  of  peace. 

§ 161.  Continued. 

§ 162.  Time  when  a treaty  begins  to  be  binding. 

CHAPTER  II. 

OF  THE  RELATIONS  BETWEEN  nELLIGERENTS  AND  NEUTHALS. 

Section  I. — Of  the  Obligations  and  Rights  of  N&Ural  States. 

§163.  Doctrine  of  neutrality  of  modern  growth.  Neutrals,  who  ? Gradations 
of  neutrality.  Permanent  neutrality.  Armed  neutrality. 

§ 164.  Obligation  of  neutrals  to  be  Impartial. 

§ 165.  To  stand  aloof  from  both  parties. 

§ 166.  To  be  humane  to  both. 

§ 167.  The  neutral  may  admit  into  hi.s  jiorts  war  vessels  of  both  belligerents. 

§ 168.  Treaty  obligations  to  do  this. 

§ 169.  Wliat  neutrals  may  not  do. 

§ 170.  Case  of  the  Alabama. 

§ 171.  Cases  doubtful  or  disputed.  Passage  of  troops. 

§ 172.  The  neutral  furnishing  troops. 

§ 173.  What  may  a neutral’s  subjects  do  ? 

§ 174.  Rights  of  neutrals.  Case  of  the  Caroline. 

§ 175.  Continues  § 174. 

§ 176.  iMiinieipal  law.s  enforcing  neutrality. 

§ 177.  Rritish  foreign  enlistment  act  of  1870. 

§ 178.  Case  of  the  British  ambassador  in  the  Crimean  war. 

§ 179.  Relation  of  neutrals  to  the  parties  in  an  internal  war. 

§ 180.  Recognition  of  belligerency. 

§ 181.  Right  of  stopping  trade  of  neutrals  with  revolted  territories. 

Section  II.  — Of  the  Rights  and  Liabilities  of  Neutral  Commerce. 

§ 182.  Importance  of  questions  touching  rights  of  neutral  trade. 

§ 183.  Who  are  neutrals,  and  what  is  neutral  property? 

§ 184.  General  principles  as  to  liability  of  goods  to  capture. 

§ 185.  Nationality  of  goods  and  vessels,  as  affecting  their  liability  to  capture. 

§ 186.  Treatment  of  vessels  conveying  hostile  goods. 

S 187.  Justice  of  the  rules  respecting  neutral  trade  considered. 


XVI 


CONTENTS. 


§ 188.  Former  practice  in  regard  lo  neutral  trade. 

§ 189.  Historical  illustrations. 

§ 190.  Declaration  attached  to  the  Peace  of  Paris  in  1856. 

§ 191.  Opinions  of  publicists. 

§ 192.  Neutral  property  in  armed  enemies’  vessels. 

§ 19.3.  Contraband  of  war. 

§ 194.  What  goods  arc  contraband  in  the  usage  of  nations. 

§ 195.  Pesults  as  to  deciding  what  articles  are  contraband.  Occasional  con- 
traband. 

§ 196.  Is  it  just  and  sanctioned  by  usage.  0|)inions  in  respect  to  it. 

§ 197.  Preemption.  English  ])ractice  in  c.ases  of  |ireemption. 

§ 198.  Penalty  for  contraband  at  sea.  Tieaty  modifying  the  penalty. 

§ 199.  Neutrals  carrying  the  enemy’s  despatches.  Case  of  the  Trent. 

§ 200.  Trade  closed  in  peace  but  open  in  war. 

§ 201.  The  same  subject  continued. 

§ 202.  Blockade.  What  places  can  be  blockaded  1 VVby  is  a breach  of  block- 
ade unlawful  ? Validity  of  a blockade.  Paper  or  cabinet  blockade 
unlawful. 

§ 203.  Evidence  of  a blockade  What  is  due  notice  ? What  is  a discontinu- 
ance of  a blockade  1 

§ 204.  French  and  English  practice  as  to  notification. 

§ 205.  Penalty  for  breach  of  blockade.  Duration  of  liability  to  penalty. 

§ 206.  Attempts  to  stretch  the  rules  of  blockades.  Berlin  decree.  Orders  in 
Council.  Milan  decree.  British  Orders  in  Council  of  1809. 

§ 207.  Continuous  voyages. 

§ 208.  The  right  of  search.  Its  narrow  limits.  Duty  of  submitting  to  it. 
Treaties  often  regulate  tbe  right. 

§ 209.  Is  there  a right  of  convoy  1 Historical  illustrations'. 

§210.  Its  justice  considered. 

§211.  Neutrals  under  belligerent  convoy. 

§ 212.  Search  during  peace  lo  c.xecute  revenue  laws. 

§ 213.  Search  on  suspicion  of  piracy. 

§ 214.  Search  of  vessels  on  the  high  sea  suspected  of  hostile  designs.  Case  of 
the  Virginius. 

§ 215.  Search  of  foreign  vessels  suspected  of  being  slaver.s,  unauthorized. 

§ 216.  But  conceded  by  treaties  between  most  of  the  European  states.  Ex- 
amples of  such  treaties. 

§217.  Obligations  of  the  United  States  in  regard  to  the  slave-trade.  Besolu- 
tions  of  Congress,  February  28,  1823.  Negotiations  in  England,  and 
Convention  of  1824,  amended  by  the  Senate  of  the  United  States, 
then  rejected  by  England. 

§ 218.  Treaty  of  Washington  in  1842.  Practice  under  the  treaty. 

§219.  What  docs  the  right  of  search  mean  1 Doctrine  held  by  the  United 
States.  New  discussion  concerning  the  right  in  1858,  1859.  New  ar- 
rangements with  Great  Britain  in  1862. 

§ 220.  Nationality  of  vessels  a legitimate  matter  for  inquiry  in  peace. 

§ 221.  Right  of  search  for  her  seamen,  claimed  by  Great  Britain. 


CONTENTS. 


XVll 


CONCLUSION. 

DEFECTS,  SANCTIONS,  PEOGEESS,  AND  PEOSPECTS  OF  INTEENATIONAL  DAW. 

§ 222.  Defects  of  international  law.  Its  uncertainty. 

§ 223.  Its  narrow  limits. 

§ 224.  Peaceful  ways  of  preventing  or  ending  strife  between  nations. 

§ 223.  Plans  for  standing  public  arbitration. 

§ 226.  Projects  for  perpetual  peace,  as  those  of  Henry  IV.,  St.  Pierre,  Kant, 
Benthain.  Ladd’s  essay.  Petition  of  a peaee  society  to  the  House  of 
Eepresentatives  in  Congress,  and  its  answer. 

§ 227.  Comproniissory  arbitration. 

§ 228.  Sanctions  of  international  law. 

§ 229.  Its  actual  progress. 

§ 230.  Its  prospects  for  the  future. 

§ 231.  Importance  of  the  study  of  this  science. 

APPENDIX  I. 

Selections  of  works  relating  to  international  law. 

APPENDIX  ir. 

List  of  the  principal  treaties  '^'pectaMv  of  ocliti.'al  onas,  since  the  Keformation. 
b 


INTERNATIONAL  LAW. 


INTRODUCTORY  CHAPTER. 

DEFINITION,  GROWTH,  JURAL  AND  MORAL  GROUNDS,  SOURCES  OF 
INTERNATIONAL  LAW. 

§ 1- 

In  order  to  protect  the  individual  members  of  human  society 
from  one  another,  and  to  make  just  society  possible,  the  Crea- 
tor of  man  has  implanted  in  his  nature  certain  conceptions 
which  we  call  rights,  to  which  in  every  case  obligations  cor- 
respond. These  are  the  foundation  of  the  system  of  justice, 
and  the  ultimate  standard,  with  which  laws  are  compared,  to 
ascertain  whether  they  are  just  or  unjust.  They  involve,  amid 
all  the  inequalities  of  condition,  a substantial  equality  of  the 
members  of  society  before  the  tribunal  of  law  and  justice,  be- 
cause the  physical,  intellectual,  and  moral  natures  of  all  imply 
the  same  capacity  and  destination,  and  because  to  the  capacity 
and  destination  of  man  his  rights  or  powers  of  free  action 
must  correspond.  On  this  basis  within  the  state,  and  often 
without  any  direct  cooperation  of  its  members,  a system  of  law 
grows  up,  which,  while  it  may  be  imperfect,  approaches,  with 
the  progress  of  the  society  in  knowledge  and  moral  cultivation, 
to  the  standard  of  perfect  justice. 

And  even  the  moral  progress  of  society,  the  ability  of  its 
members  to  acknowledge  their  reciprocal  claims  and  discharge 
their  duties  to  each  other,  — to  fulfill  their  part  in  that  moral 
sphere  Avhich  lies  in  great  measure  quite  beyond  the  reach  of 
positive  law,  — this  also  is  dependent  to  a great  degree  upon 
their  correct  estimate  of  rights  and  obligations. 

1 


2 


INTKODUCTORY  CHAPTER. 


§ 3 


§ 2- 

Nations  or  organized  communities  of  men  differ  from  the  in- 
dividual men  of  a state,  in  that  they  are  self-governed,  that  no 
law  is  imposed  on  them  by  any  external  human  power,  while 
yet  they  retain  the  moral  accountable  nature,  which  must 
govern  the  members  of  a single  society.  They  cannot  have 
intercourse  with  one  another  without  feeling  that  each  party 
has  rights  and  obligations.  They  have,  as  states,  a common 
nature  and  destination,  whence  an  equality  of  rights  arises. 
And  hence  proceeds  the  possibility  of  a law  between  nations 
which  is  just,  as  expressing  reciprocal  rights  and  obligations, 
or  just,  as  expressing  a free  waiver  of  the  rights  which  are  by 
all  acknowledged;  and  which  may  also  embody  by  mutual 
agreement  rules,  defining  their  more  obvious  claims  and  du- 
ties, or  aiming  to  secure  their  common  convenience  and  wel- 
fare. (Comp.  § 27.) 

This  law  of  intercourse  between  nations  has  been  united 
with  political  law,  or  the  doctrine  concerning  the  constitution 
of  the  state  and  the  relations  of  the  government  to  the  people, 
under  the  head  of  public  law,  as  opposed  to  private^  or  to  the 
system  of  laws  within  the  state,  by  Avhich  the  relations  of  its 
individual  members  are  defined  and  protected.^  And  yet  there 
is  a branch  of  this  law  which  has  both  a private  and  a public 
character, —-private  as  relating  to  persons,  and  public  as  agreed 
upon  betAveen  nations.  This  law,  or  system  of  relations  be- 
tween states,  is  now  extensively  called  international  laAV. 

§3. 

International  laAv,  in  a wide  and  abstract  sense,  would 
Interna-  embrace  those  rules  of  intercourse  between  nations 
in°thiwidest  wliich  are  deduced  from  their  rights  and  moral 
sense.  claiiiis  ; or,  in  other  Avords,  it  is  the  expi’ession  of  the 
jural  and  moral  relations  of  states  to  one  another. 

' Coni]).  Kliiber,  § 2,  .duel  for  the  next  remark  Pltird’s  Lmo  of  Freedom  and 
Bondaeje,  § 25.  The  Germans  excel  ns  in  the  neatness  of  their  divisions  of  jural 
science,  e.  g.,  offentliches  Rcclit  is  divided  into  Staatsrecht  and  Vdlkerrccht. 


§5. 


INTERNATIONAL  LAW. 


3 


According  to  this  definition,  if  we  could  once  find  out  what 
are  the  rights  and  obligations,  the  moral  claims  and  duties  of 
nations  as  such,  by  mere  deduction  the  principles  of  this  science 
would  be  settled.  But  such  an  abstract  form  of  the  science, 
commanding  general  assent,  neither  has  appeared  nor  is  likely 
to  appear.  The  advantage  of  separating  international  law  in 
its  theoretical  form  from  the  positive  existing  Code  depends, 
not  on  the  possibility  of  constructing  a perfect  code  according 
to  a true  theory,  but  on  the  fact  that  right  vuews  of  justice 
may  serve  as  a touchstone  of  actual  usages  and  regulations  ; for 
in  all  jural  science  it  is  most  important  to  distinguish  between 
the  law  as  it  is  and  as  it  ought  to  be.  This  same  distinction 
is  made  by  those  ^ who  discriminate  between  international  law, 
— the  positive,  admitted  law,  — and  international  morality. 
But  the  latter  term  must  be  objectionable  to  those  at  least 
who  make  a distinction  between  morals  and  jus.  The  law  of 
nations,  however,  both  as  it  is  and  as  it  ought  to  be,  does  not 
confine  itself  within  the  jural  sphere. 


§ 4. 

In  a more  limited  sense  international  law  would  be  the 
system  of  positive  rules  by  which  the  nations  of  the  i„ternation- 
world  regulate  their  intercourse  with  one  another.  ^ore"iiniUed 
But  in  strictness  of  truth  this  definition  is  too  broad, 
for  there  is  no  such  law  recognized  as  yet  through  all  nations. 
Neither  have  the  more  civilized  states  of  the  East  agreed  with 
those  of  Europe,  nor  the  states  of  antiquity  with  those  of  mod- 
ern times,  unless  it  be  in  a few  provisions,  which  together 
would  constitute  an  exceedingly  meagre  code. 


§5. 

Coming  within  narrower  limits,  we  define  international  law 
to  be  the  aggregate  of  the  rules  which  Christian 

1 IT  . 1 . 1 . Actual  po.«i- 

states  acknowledge  as  obligatory  in  their  relations  tiveintcma- 
to  each  other,  and  to  each  other’s  subjects.  Tlie 


1 Comp,  nn  article  attributed  to  Mr.  Senior  in  Edinburgh  Beview,  No.  1.56,  for 
April,  184.3,  on  Wheaton’s  nistonj  of  the  Law  of  Nations,  in  which  the  differences 
between  morality  as  predicated  of  nations  and  of  individuals  are  set  forth. 


4 


INTRODUCTORY  CHAPTER. 


§5- 


dom, 


but  not 
obseryed 
towards 
gayagcs. 


rules  also  which  they  unite  to  impose  on  their  subjects,  re- 
spectively, for  the  treatment  of  one  anothe]’,  ai’e  included  here, 
as  being;  in  the  end  rules  of  action  for  the  states  themselves. 
Here  notice,  — 

1.  That  as  Christian  states  are  now  controllers  of  opinion 
extending  aiuong  111611,  their  views  of  law  have  begun  to  spread 
cSeu-  beyond  the  bounds  of  Christendom,  as  into  Turkey, 

China,  and  Japan. 

2.  The  definition  cannot  justly  be  widened  to  include  the 
liiw  which  governs  Christian  states  in  their  inter- 
course with  savage  or  half-civilized  tribes  ; or  even 
with  nations  on  a higher  level,  but  lying  outside  of 

their  forms  of  civilization.  In  general,  towards  such  nations, 
they  have  acted  on  the  principle  that  there  is  no  common  bond 
of  obligation  between  them  and  the  other  parties,  observing  only 
so  much  of  international  law  as  suited  their  policy  or  sense  of 
right  at  the  time.  Especially  towards  savage  tribes  they  have 
often  acted  with  flagrant  selfishness,  as  if  they  feared  no  retri- 
bution from  a weaker  party,  or  were  beyond  the  reach  of  pub- 
lic opinion.  (Comp.  § 143  and  § 223.) 

3.  The  rules  of  action  agreed  upon  by  two  or  more  Christian 
states,  but  not  by  all,  or  the  most  of  them,  form  no  part  of 
international  law ; although  they  often  illustrate  it,  and  often 
pave  the  Avay  for  the  admission  of  new  modifications  of  it. 

4.  Nations,  it  is  conceded  by  all,  have  obligations  towards 
foreigners  who  are  not  constituent  parts  of  any  nation,  or,  at 
least,  of  any  nation  by  which  the  law  of  nations  is  acknowl- 
edged. The  consideration  of  the  rights  or  moral  claims  of  such 
persons  belongs  to  international  law,  not  as  the  system  of  rules 
observed  between  nations,  but  as  involving  obligations  which 
all  nations,  or  all  Christian  nations,  acknowledge.  (§  146.) 


§ 6. 

The  way  in  which  positive  international  law  becomes  such 
shows  that  it  must  be  progressive  and  somewhat  uncertain. 
Right,  as  Heffter  remarks,^  is  either  guaranteed^  under  the 

1 VOlkerreclit , § 2. 


§6. 


INTERNATIONAL  LAW. 


5 


protection  and  force  of  a competent  power  (as  we  see  it  in  the 
state),  ovfree,  that  is,  the  individual  power  or  person 
must  protect  and  preserve  it  for  himself.  The  law  of 
nations  is  of  this  latter  kind.  First  of  all,  the  sin-  Toiuntary 

. . nature. 

gle  state  sets  up  for  itself  its  views  of  right  against 
other  states.  If  it  gives  up  its  isolation,  it  freely  forms  in  inter- 
course with  other  states  a common  right  or  law,  from  which 
now  it  can  no  longer  set  itself  free,  without  offering  up,  or  at 
least  endangering,  its  peaceful  relations,  and  even  its  exist- 
ence. 

Thus  a law  of  nations  can  grow  up  only  by  the  consent  of 
the  parties  to  it.  It  is,  therefore,  more  a product  of  human 
freedom  than  the  municipal  law  of  a particular  state.  Its 
aatural  progress  is  to  start  from  those  provisions  which  are 
necessary  in  conducting  political  and  commercial  intercourse, 
while  it  leaves  untouched,  for  a time,  many  usages  which  are 
contrary  to  humanity  and  morality  ; until,  with  the  advance  of 
civilization,  the  sway  of  moral  ideas  becomes  stronger.  It 
grows  into  a system  of  tolerable  justice  and  humanity  after, 
perhaps  long  after,  municipal  legislation  has  worked  ^ ^ 
itself  clear  of  many  faults  and  errors.  For  although  growth  than 

^ stcito  ItlW. 

both  branches  of  law  have  the  same  foundation  of 
justice,  and  although  a state,  like  Rome,  for  example,  with  an 
advanced  system  of  internal  laws,  ought  to  have  its  views  of 
international  obligations  purified  ; yet,  as  states  have  diverse 
interests  and  opinions,  it  takes  time  before  a seeming  interest 
can  be  given  up,  even  after  right  is  acknowledged  to  be  on  the 
other  side  ; and  it  takes  time  to  bring  the  views  of  nations  to 
a common  standard.^ 

1 A state  in  the  lower  grade  of  civilization,  like  a sav.n^e,  hccomes  conscious  of 
its  separate  existence  in  the  act  of  resistance,  or  of  defending  that  existence.  Such 
self-preservation  on  the  part  of  the  individual  arouses,  it  may  he,  no  better  feeling 
than  that  of  independence  and  self-reliance  ; in  the  state  it  helps  the  memhers  to 
feel  their  unity  and  dependence,  and  the  priceless  value  of  the  state  itself.  Plence 
war  is  amoral  teacher  : opposition  to  external  force  is  an  aid  to  the  highest  civic 
virtues.  But  if  this  were  all  there  could  be  no  recognition  of  obligations  towards 
foreigners,  no  community  of  nations,  in  short,  no  world.  These  conceptions  grow 
up  in  man,  from  the  necessity  of  recognizing  rules  of  intercourse,  and  intercourse 
is  itself  a natural  necessity  from  the  physical  ordinances  of  God.  Self-protection 


6 


INTRODUCTORY  CHAPTER. 


§ 7. 


§7. 

The  same  causes  which  have  enabled  Christian  states  to 
Why  this  reach  a higher  point  of  civilization  than  any  other, 
Christian  have  made  them  the  first  to  elaborate  a system  of 
states.  international  law.  These  causes  have  been  princi- 

pally : (^1)  the  high  moral  standard  of  the  religion  which  they 
in  common  professed,  — a religion  which  cultivates  alike  the 
sentiments  of  justice  and  of  humanity  ; (2)  the  inheritance 
which  came  to  them  of  philosophy  and  legal  science  from  the 
classical  states  of  antiquity,  and  especially  the  system  of  Ro- 
man law  ; and  (3)  a close  historical  connection  since  the  times 
of  the  Roman  empire,  favoring  the  spread  of  common  ideas. 
Thus  the  same  religious  and  jural  views,  and  a similar  histor- 
ical development,  give  rise  to  a community  of  nations,  where 
it  is  comparatively  easy  for  common  usages  to  grow  up.  No 
such  common  feeling,  but  quite  the  opposite,  existed  between 
them  and  their  Mohammedan  neighbors  ; and  hence  the  latter 
were  long  sliut  out  from  the  pale  of  their  international  law. 


§ 8. 

In  other  parts  and  ages  of  the  world  laws  have  grown  up, 
in  groups  of  nations,  for  the  regulation  of  their  con- 
duct  to  each  other.  But  these  have  all  been  partial, 
imperfect*,^'^  and  Were  never  constructed  into  a science.  The  clas- 
Greeceand  sic  states  of  antiquity  had,  at  the  best,  a very  simple 
and  imperfect  body  of  such  rules  and  usages.  Am- 
bassadors and  heralds  had  a sacred  character ; truces  and 
treaties  were  acknowledged  to  be  obligatory  ; war  was  usually 
begun  with  an  open  declaration,  and,  perhaps,  with  solemn 
formalities ; but  when  once  begun,  it  was  waged  with  little 
rule  or  check.  The  Greeks  were  favorably  situated 
for  the  development  of  a Hellenic  international  law  ; 
for,  like  the  Christian  states  of  modern  times,  they  formed  a 


Greece. 


and  intercourse  are  thus  the  two  sources  of  international  law ; they  make  it 
necessary,  and  the  conception  in  man  of  justice,  of  rights  and  obligations,  must 
follow,  because  he  has  a moral  nature. 


§8. 


INTERNATIONAL  LAW. 


7 


circle  of  communities,  standing  at  nearly  the  same  level  of 
civilization,  and  in  religion,  as  well  as  in  historical  traditions, 
connected  with  one  another.  And,  in  fact,  the  rudiments  of 
such  a law  appear  in  the  course  of  their  history.  They  gen- 
erally gave  quarter,  allowed  the  ransom  of  prisoners,  respected 
trophies,  and  consented  to  truces  for  the  burial  of  the  dead. 
They  acted  on  the  principle  of  the  balance  of  power  against  a 
dangerous  and  ambitious  state  belonging  to  their  circle ; they 
had  a usage  bearing  some  resemblance  to  the  modern  consular 
system  ; and  they  sometimes  by  treaties  or  perpetual  leagues, 
as  the  Amphictyonic,  secured  the  existence  of  the  parties  con- 
cerned, or  even  softened  the  severities  of  war.^  But  towards 
barbarians  they  acted  almost  without  rule,  and  among  them- 
selves permitted  the  most  flagrant  acts  of  inhumanity. 

The  Romans  had  less  of  international  law  than  the  Greeks, 
and  were  less  scrupulous,  if  we  except  their  obser- 
vance,  in  their  earlier  days,  of  the  fecial  rules,  which 
accorded  so  well  with  the  formality  of  their  religious  character. 
The  reason  of  this  appeal’s  to  be  that,  after  they  became  mas- 
ters of  Italy,  many  of  the  nations  they  encountered  were  of 
another  type  than  their  own,  and  for  the  most  part  ’in  decay 
or  half  civilized,  and  not  in  any  respect  their  equals.  To- 
wards such  enemies  they  could  act  as  their  convenience  dic- 
tated. 

It  has  been  said  that  the  Greeks  had  no  international  law 
at  all;  and  the  same  arguments  would  deny  the  ex-  no reason 
istence  of  such  a law  among  the  Romans,  in  their  ^hat  they^ 
earliest  times.^  There  seems  to  be  no  suflicient  l“ernruona'i 
ground  for  this  opinion.  Neither  nation  may  have 
reached  an  accurate  notion  of  an  international  law,  but  they 

1 Tims  the  old  Ainphict3  onic  league  contemplated  an  armed  intervention  for 
the  security  of  any  member  threatened  with  utter  ruin  by  another ; and  no  state 
belonging  to  the  league  was  to  be  deprived  in  war  of  the  use  of  its  fountain  water. 
iEschines,  De  Falsa  Lef/atione,  § 11.5 ; Bekk.  ; p.  279,  Taylor. 

2 A controversy  was  carried  on  in  regard  to  the  Greeks  between  Wachsmuth 
and  Hefftcr,  the  former  affirming  the  existence  of  a law  of  nations  among  them, 
the  latter  denying  it.  Comp.  Osenbriiggen,  De  Jure  Belli  et  Pacts  (Leipz.,  1836), 
p.  4,  seq. 


8 


INTEODUCTORY  CHAPTER. 


§ 8. 

had  usages  corresponding  to  those  which  nations  under  such  a 
law  now  observe ; and  if  these  usages  were  placed  under  the 
sanction  of  religion,  to  secure  for  tliem  a more  thorough  ob- 
servance, that  religious  character  no  more  takes  them  out  of 
the  category  of  laws  regulating  conduct  towards  other  states, 
than  the  same  religious  sanction  given  to  the  duty  of  hospital- 
ity took  this  duty  out  of  the  list  of  moral  precepts.  All  mo- 
rality and /ms  are  sanctioned  by  religions  which  have  in  them  a 
moral  element,  and  sometimes  the  forms  of  religion  groAV  on  to 
them  so  as  to  give  them  a religious  aspect.  The  fecial  law  in 
Rome’s  earlier  days  must  have  been  the  common  property  of 
all  the  Latin  cities,  a living  law  under  the  protection  of  the 
higher  powers,  introduced  to  prevent  by  its  formalities  a state 
of  irregular  war.  (Comp.  § 120.) 

But  in  mediaeval  Europe,  also,  the  laAV  of  nations  for  a time 
Internation-  scai'cely  I'ose  above  the  level  ivhich  it  reached  in 
Middle Gi’eece  and  Rome.  Especially  was  this  the  case  dur- 
Ages.  period  of  dissolution  and  reconstruction,  and 

so  long  afterwards  as  national  existence  was  kept  down  by  the 
spirit  of  feudalism.  The  principal  causes  which  modified  it 
were,  together  with  this  of  feudalism,  the  spirit  of  chivalry, 
the  influence  of  Christianity,  and  the  eentralized  government 
of  the  Christian  church.  Feudalism,  by  breaking  up  society 
into  portions  slightly  united  together,  made  the  progress  of 
better  usages  and  the  triumph  of  right  over  will  an  up  hill 
woi’k  ; it  increased  the  tendency  to  private  war  and  sanctioned 
the  right  of  resistance  to  the  central  government  ; and  it  in- 
volved the  presence  on  the  soil  of  a large  mass  of  men  ivho 
had  almost  no  rights.  But  the  spirit  of  chivaliy,  by  encour- 
aging high  sentiments  of  honor  and  fidelity,  gave  a moral  sanc- 
tion to  the  observance  of  treaties,  and  rendered  fraud  and 
unfair-  advantages  over  a rival  unworthy  of  the  true  knight ; 
it  threw  a lustre  over  the  defense  of  the  weak  and  unpi’otected; 
and  it  cultivated  humane  feelings  towards  each  other  among 
die  rulers  of  society.  The  spirit  of  Chi-istianity,  also,  — which, 
indeed,  ivas  at  wmrk  in  the  origination  of  chivalry  itself,  — did 
much  to  facilitate  intercourse  among  men  of  a common  faith ; 


§8 


INTEKNATIONAL  LAW. 


9 


it  stopped,  as  far  as  it  could,  private  wars  ; it  opposed  the  bar- 
barity of  selling  Christians  as  slaves,  and  introduced  a some- 
what milder  treatment  of  captives  taken  in  war  ; and  it  lent 
its  sanction  to  all  moral  obligations.  But  it  was  neither  pure 
enough  nor  strong  enough  to  introduce  a mild  treatment  of 
intidels,  nor  did  it  prevent  various  kinds  of  inhumanity,  in 
peace  as  well  as  war,  between  Christians. 

The  government  of  the  church  by  a monarch,  who  gradu- 
allv  gained  great  political  power,  was  the  source  of  the  most 
striking  peculiarities  of  the  public  law  of  the  mediseval  period. 
The  presence  in  Exirope  of  an  ultimate  interpreter  in  religious 
and  moral  questions  doubtless  did  great  good  as  well  as  harm. 
Every  important  question  of  politics  had  a bearing  on  religion, 
which  could  bring  it  up  for  examination  and  settlement  before 
the  Pope ; and  the  very  vagueness  of  the  theory  of  papal  intei’- 
ference  aided  its  success  on  favorable  occasions.  In  a gloss  to 
the  canon  law  (c.  2,  Can.  xv.,  qu.  6),  it  is  said  of  the  dispen- 
sing power  of  the  Roman  See,  that  “ contra  jus  naturale  Papa 
potest  dispensare,  dum  tainen  non  contra  Evangelium  ; ” and 
the  great  Pope  Innocent  III.  said  : “ Nos  secundum  plenitudi- 
nem  potestatis  de  jure  possumus  supra  jus  dispensare.”  (C.  4, 
X.,  De  Concessione  Prtebendae.)  This  dispensing  power  ex- 
tended to  oaths.  The  oath  of  fealty  was  the  moral  cement  of 
society,  the  last  cord  which  bound  the  vassal  to  the  suzerain. 
But  the  Popes  asserted  the  right  of  releasing  vassals  from  their 
oaths  of  allegiance,  on  the  plea  that  the  suzerain,  who  was  dis- 
obedient or  hostile  to  the  church,  might  be  proceeded  against 
even  to  excommunication,  and  an  outlaw  as  to  church  rights 
ought  not  to  rule  over  Christians.  In  the  disputes  of  kings,  the 
weaker  party  often  appealed  to  the  Pope,  and  thus  gave  him 
an  opportunity  to  arbitrate  or  command.  Treaties  confirmed 
by  word  of  honor  and  solemn  oath  were  open  to  the  papal  re- 
vision. Word  might  he  broken  with  heretics,  as  the  enemies 
of  Christ.  In  the  noted  case  of  Huss.  who  had  received  a safe 
conduct,  the  Council  of  Constance  resolved  that  it  was  lawful 
for  a competent  ecclesiastical  judge  to  proceed  against  and 


10 


INTKODUCTORY  CHAPTER. 


§8. 


punish  obstinate  heretics,  “ etiamsi  de  salvo  condnctu  confisi 
ad  locum  venerint  judicii,  alias  non  venturi.”^ 

The  iieierhborhood  of  dreaded  enemies  of  the  Cliristian  re- 
ligion  — of  encroaching  Mohammedan  powers  — brought  up 
the  question  whether  compacts  could  be  made  with  infidels. 
This  could  not  be  avoided,  if  the  two  religions  should  have 
any  intercourse,  as  in  Spain  ; but  tlie  lawfulness  of  treaties, 
especially  of  alliances,  with  them  was  denied.  Fulk,  Arch- 
bishop of  Rheims,  told  Charles  the  Simple  that  there  was  no 
difference  between  becoming  the  ally  of  pagans  and  abandon- 
ing God  for  the  worship  of  idols.  (Grotius  II.,  xv.,  11,  § 3.) 
And  this  feeling,  that,  whilst  leagues  of  peaceful  intercourse 
could  be  entered  into  with  infidels,  alliances  with  them  were 
forbidden  by  Christian  law,  long  remained  ; and  was  strength- 
ened, no  doubt,  by  the  apprehension  that  thus  the  scandal 
would  arise  of  Christians  leagued  with  unbelievers  against 
fellow-Christians.2 

Many  cruelties  handed  down  from  barbarous  times  held 
their  ground  through  the  mediseval  period.  Thus  strangers 
were  capriciously  treated,  and  had  scarcely  any  rights.  (Comp. 
§ 67.)  After  this  period  was  over.  Cardinal  Richelieu  showed 
its  influence  by  avowing  the  right  of  arresting  all  strangers 
who  came  into  the  kingdom  without  safe  conducts ; and  a 
number  of  examples  occur  in  those  times  of  illustrious  stran- 
gers, like  Coeur  de  Lion  in  1192,  who  when  thrown  by  some 
accident  on  Christian  shores  were  kept  in  captivity  until  they 
were  ransomed.  Cruelties  in  war,  of  which  we  speak  below 
in  §§  134,  135,  although  often  prevented  by  the  genius  of 
Christianity,  were  still  common  enough.  Captives  were  held 
for  a ransom,  or  even  sold.  The  serf  felt  the  full  severity  of 
war.3 

1 Gieseler,  Kirchengesch..,  il.,  part  4,  419. 

^ Sir  E.  Coke  condemns  alliances  with  infidels  in  a passage  of  his  4th  Institute 
cited  by  Ward,  and  his  contemporary  Grotius  {uhi  supra)  does  not  like  them. 

® See  Ward’s  Historg,  passim. 


§10. 


INTEENATIONAL  LAW. 


11 


§ 9- 

Our  science  was  called  first  by  Zoucb  (professor  at  Oxford), 
in  bis  “ Jus  Feciale,”  1650,  jus  inter  gentes.  Its  com- 
mon English  appellation  formerly  was,  the  latv  of  to^thu 
nations.  Since  Bentham  led  the  way,  it  has  been 
called  international  law.  A distinction  of  no  great  value  has 
been  set  up  between  these  two  terms,  according  to  which  the 
former  relates  to  the  historical  character  or  origin  of  the  law, 
and  the  latter  to  its  jurisdiction  or  ajiplication.i  They  will 
be  used  by  us  as  equivalents. 

The  law  of  nations,  jus  inter  gentes.,  is  not  to  be  confounded 
with  the  jus  qentiiun  of  the  Romans.  This  term  de- 

• 1 ,,  Not  the 

noted  the  principles  and  usages  of  law  common  to  all  same  as  jus 

. -11  • gentium. 

nations,  that  is,  practically,  to  all  nations  known  to 
the  Romans,  as  contrasted  with  what  was  peculiar  to  the/ws 
civile,  the  law  of  Rome  itself.  Gains  says  (“  Inst.,”  i.,  § 1), 
“quod  naturalis  ratio  inter  omnes  homines  constituit,  id  apud 
omnes  populos  perseque  custoditur,  vocaturque  jus  gentium, 
quasi  quo  omnes  gentes  utuntur.”  The  common  usages  of  na- 
tions may  run  through  all  the  fields  of  law,  and  so  will  include 
some  rules  of  the  international  code.  But  the  two  evidently 
cover  different  ground,  and  the  civil  law  never  distinctly  con- 
templates a law  of  nations  in  the  modern  sense. 

§ 10. 

It  is  important,  again,  not  to  confound  international  law 
with  natural  law,  — or,  as  it  has  been  variously  called.  Different 
jus  naturale,  lex  naturalis,  and  lex  natures.  Jus  nat-  n™t^)i“eor 
urale  is  the  product  of  natural  reason,  and  ought, 
since  men  are  alike  in  their  sense  of  justice,  to  be  everywhere 
substantially  the  same.  According  to  Gains  and  most  other 
Roman  lawyers,  it  is  not  different  from  jus  gentium,  as  already 
defined.  But  Ulpian  and  others  make  a distinction  between 
the  two,  which  has  passed  into  tlie  Institutes  of  Justinian,  with- 
out, however,  influencing  Roman  law.  To  them  jus  naturale 
1 Eeddie,  quoted  by  Hurd,  Law  of  Freedom  and  Bondage,  i.,  46. 


12 


INTRODUCTORY  CHAPTER, 


§ 10. 

is  that  in  which  men  and  animals  agree,  — the  law  stamped  on 
free  animate  beings.  Savigny  thus  explains  their  views : ^ 
“ There  was  a time,  we  may  conceive,  when  men  acknowl- 
edged only  those  relations  which  are  common  to  man  and 
beast,  when  they  followed  natural  affections  and  impulses  in 
all  freedom.  This  was  the  reign  oijus  naturale.  To  this  suc- 
ceeded an  age  of  founding  states,  when  slavery,  private  prop- 
erty, and  obligations  were  introduced,  and  introduced  every- 
where alike.  This  was  the  jus  gentium.  At  last  jus  was 
developed  in  each  state  in  its  own  peculiar  way  by  modifying 
old  institutions,  or  setting  up  new  ones.” 

§ 11- 

Modern  writers  have  retained  the  term  in  an  altered  signifi- 
cation. Grotius  (I.,  1,  S 10)  defines  it  to  be  “dic- 

Dcfinition  of  . . . , . .... 

jus  naturale  tatuiii  I'cctae  ratioiiis,  indicans  actiu  alicui,  ex  ejus 

by  Grotius.  . • • , 

convenientia  aut  disconvenientia  cum  ipsa  natura  ra- 
tionali  ac  sociali,  inesse  moralem  turpitudinem  aut  necessita- 
tem  moralem,'-^  ac  consequenter  ab  auctore  naturm  Deo  aut 
vetari  aut  prgecipi.” 

Grotius  thus  uses  the  term  to  include  morality  and  jus,  as 
the  foundation  of  jus  voluntariu7n,  that  is,  as  the  standard  to 
which  law  civil  or  international  ought  to  be  conformed.  But 
existing  law  may  differ  widely  from  it. 

§ 12. 

Puffendorf’s  work  on  the  law  of  nature  and  nations  differs, 
to  his  disadvantage,  from  that  of  Grotius,  in  making  little  ac- 
count of  usage  and  voluntary  According  to  Grotius,  the 

1 Si/stem  des  limit.  Rom.  Redds,  i.,  41.5. 

2 That  is,  a morally  binding:  force.  Ilartciistein,  in  his  valuable  essay  on  the 
work  of  Grotius  [AhhandL  der  Lcipz.  Gesellsdi.,  i.,  504,  509),  reduces  the  uses  made 
by  Grotius  of  the  term  jus  natur.ale  to  these  three  heads  ; ( 1 . ) To  the  general  obli- 
gation to  satisfy  moral  claims,  especially  the  more  definite  claims  of  jns  and  equity. 
(2  ) To  the  claims  or  rights  which  grow  out  of  the  nature  of  man,  and  would  be 
acknowledged  in  an  incorrnjit  society,  were  there  no  organized  state.  (3.)  To 
certain  effects  and  results  of  .acts  of  human  will.  Thus,  Grotius  would  say,  man’s 
will  originated  property,  but  when  once  property  was  introduced,  jus  naturale  in- 
dicated that  it  is  wrong  for  one  to  take  what  is  another’s  without  his  consent. 


INTERNATIONAL  LAW. 


13 


§ 13. 

law  of  nations  is  “jus  illud,  quod  interpopulos  pliires  aut  popu- 
loriim  rectores  intercedit,  inoribus  et  pacto  tacito  introductuin.” 
Puffendorf,  as  Mr.  Wildman  says,^  “entirely  denies  ^ 

. Puffendorf 

the  authority  of  fjeneral  usaffe  ; and  liis  doctrine,  put-  confounds 
tine:  aside  the  mass  of  words  with  which  he  has  incuin-  and  iutcma- 

° ■ I • 1 1 1 £ 1 tional  law. 

bered  it,  amounts  to  this:  that  the  rules  of  abstract 
propriety,  resting  merely  on  unauthorized  speculations,  and 
applied  to  international  transactions,  constitute  international 
law,  and  acquire  no  additional  authority,  when  by  the  usage 
of  nations  they  have  been  generally  received  and  approved  of. 
So  that  the  law  of  nations,  according  to  Puffendorf,  ends,  where 
according  to  Grotius  it  begins.” 

Thus  Puffendorf  commits  the  faults  of  failing  to  distinguish 
sufficiently  between  natural  justice  and  the  law  of  nations;  of 
spinning  the  web  of  a system  out  of  his  own  brain,  as  if  he 
were  the  legislator  for  the  world ; and  of  neglecting  to  inform 
us  what  the  world  actually  holds  to  be  the  law  by  which  na- 
tions regulate  their  intercourse.  Probably  he  was  led  into  this 
by  not  discriminating  clearly  between  the/ws  gentium  of  the 
Romans  and  the^ws  inter  gentes  ot  modern  publicists. 

§13. 

An  opposite  course  to  this  is  to  exhibit  international  law  in 
its,  i^ositive  form,  as  it  lies  in  the  practice  and  under- 
standing of  a certain  group  of  nations,  either  without  method  in 
reference  to  any  jural  or  moral  standard,  or  with  re-  ai  law.  its 

dcficiducicSi 

course  to  moral  considerations  only  now  and  then  in 
disputed  cases.  This  is  a safe  method,  but  narrow ; and  almost 
takes  away  scientific  character  from  the  subject-matter  to 
which  it  is  applied.  What  would  municipal  law  be  worth,  if 
it  did  not  point  back  to  eternal  right,  and  if  by  tracing  it  to 
its  source  it  might  not  be  made  purer  and  more  righteous  ? If 
international  law  were  not  made  up  of  rules  for  which  reasons 
eould  be  given,  satisfactory  to  man’s  intellectual  and  moral 
nature  ; if  it  were  not  built  on  principles  of  right ; it  would  be 
even  less  of  a science  than  is  the  code  which  governs  the  ac- 
tions of  polite  society. 

Institute!!  of  International  Law  ’ “JS 


14 


INTRODUCTORY  CHAPTER. 


§ 14. 


§ 14. 

A very  narrow  foundation  is  laid  for  this  science  by  those 
who  would  build  it  on  the  obligation  to  keep  express 
ai  law  not  01’  tacit  conti’acts.  In  every  contract  it  may  be  asked 
into  contract  whether  the  parties  have  a right  to  act  at  all,  and  if 
obligation.  whether  they  can  lawfully  enter  into  the  specific 
relations  which  the  contract  contemplates.  Can  two  nations 
agree  lawfully  to  destroy  the  political  life  of  a peaceful  neigh- 
bor, and  divide  its  territories  between  them  ? We  look  beyond 
a contract  for  its  moral  grounds.  It  is  true,  indeed,  that  a law 
controlling  independent  sovereigns  can  only  become  such  by 
their  free  consent ; it  must,  as  we  have  seen,  be  voluntary. 
But  this  code  of  voluntary  rules  cannot  for  that  reason  be 
arbitrary,  irrational,  or  inconsistent  with  justice. 

§15. 

There  are,  then,  always  two  questions  to  be  asked : the  first, 
The  two  ^4id  most  important.  What  is  the  actual  understand- 
Stemluon-  practice  of  nations?  otherwise  we  have  a 

structure  that  floats  in  the  air,  subjective  speculation, 
without  authority  ; and  the  second,  On  what  rational  and  moral 
grounds  can  this  practice  be  explained  and  defended  ? other- 
wise it  is  divorced  from  truth  and  right,  mere  fact  only  being 
left  behind. 

But  what  are  the  rational  and  moral  grounds  of  interna- 
jurai  tional  law  ? As  we  have  seen,  they  are  the  same  in 
^temation-  general  with  those  on  which  the  rights  and  obliga- 
aiiaw.  tions  of  individuals  in  the  state,  and  of  the  single  state 
towards  the  individuals  of  which  it  consists,  repose.  If  we  de- 
fine natural  jus  to  be  the  science  which  from  the  nature  and 
destination  of  man  determines  his  external  relations  in  society, 
both  the  question.  What  ought  to  be  the  rights  and  obligations 
of  the  individual  in  the  state?  and  the  question.  What  those 
of  a state  among  states  ought  to  be  ? fall  within  this  branch  of 
science.  That  there  are  such  rights  and  obligations  of  states 
will  hardly  be  doubted  by  those,  who  admit  that  these  relar 


INTEENATIONAL  LAW. 


15 


§ 16. 

tions  of  natural  justice  exist  in  any  case.  There  is  the  same 
reason  why  they  should  be  applied  in  regulating  the  intercourse 
of  states,  as  in  regulating  that  of  individuals.  There  is  a nat- 
ural destination  of  states,  and  a divine  purpose  in  their  exist- 
ence, which  make  it  necessary  that  they  should  have  certain 
functions  and  powers  of  acting  within  a certain  sphere,  which 
external  force  may  not  invade.  It  would  be  strange  if  the 
state,  that  power  which  defines  rights  and  makes  them  real, 
which  creates  moral  persons  or  associations  with  rights  and  ob- 
ligations, should  have  no  such  relations  of  its  own,  — should  be 
a physical  and  not  a moral  entity.  In  fact,  to  take  the  oppo- 
site ground  would  be  to  maintain  that  there  is  no  right  and 
wrong  in  the  intercourse  of  states,  and  to  leave  their  conduct 
to  the  sway  of  mere  convenience.  (§  2.) 

§ 16. 

But  there  are  moral  relations,  also,  which  are  not  relations 
of  justice,  and  which  give  rise  to  international 
morality.  It  may  be,  to  say  the  least,  that  nations 
have  duties  and  moral  claims,  as  well  as  rights  and 
obligations.  In  matter  of  fact,  some  of  these  are  generally 
acknowledged  by  nations,  and  have  entered  into  the  law  of 
their  intercourse,  as,  for  examiDle,  the  duty  of  comity  and  that 
of  humanity.  These  relations  were  called  by  the  older  writers 
imperfect  rights  and  obligations,  not  because  the  moral  ground 
for  them  is  incomplete,  but  because  the  right  in  particular 
cases  cannot  be  ascertained,  and  therefore  ought  not  to  be 
enforced,  nor  the  violation  of  right  regarded  as  an  injury. 
Several  recent  writers  give  to  them  the  name  of  duties  and 
moral  claims,  an  example  which  we  shall  follow  in  this  work.^ 

1 Mr.  Wildman  observes,  that  “ the  phrase  ‘moral  claim’  at  once  conveys  the 
idea  which  Piiffendorf  and  Vattcl  have  employed  countless  pages  to  confuse.” 
(I.,  4.)  Dr.  Whewell  uses  this  term  in  his  Elements  of  Moraliti/  and  Polity.  He 
also  uses  the  terms yus  andyura/,  which  were  first  employed  by  Dr.  Lieber. 


16 


INTRODUCTORY  CHAPTER. 


§ 17. 


17. 


Among  the  jural  principles  or  foundations  of  international 
law,  we  name  — 

1.  The  obligation  lying  on  the  state  to  protect  the  indi- 
Particuiar  "viduals  wlio  compose  it,i  not  only  from  domestic, 
oM.'aHons  ^11^  11^®°  froiii  foreign  aggression.  This  obligation 
of  nations,  emanates  immediately  from  the  prime  function  ana 
end  of  a state,  and  is  limited  by  the  rightfulness  of  the  sub- 
ject's conduct  in  his  intercourse  with  the  stranger. 

2.  Those  qualities  or  rights  which  are  involved  in  the  ex- 
istence of  the  state.  These  may  be  called  rights  of  sovereignty 
simply,  or  may  be  ramified  into  rights  of  sovereignty,  inde- 
pendence, and  equality.  The  exercise  of  these  rights  and  the 
right  of  self-protection  may,  together,  be  embraced  under  the 
head  of  rights  of  self-preservation.  (§  37.) 

3.  Those  rights  which  the  state  has  in  common  with  indi- 
viduals or  with  artificial  persons,  as  the  right  of  property,  that 
of  contract,  and  that  of  reputation. 

4.  The  right  which  arises  when  the  free  exercise  of  the 


state’s  powers  above  mentioned  is  impeded,  that  is,  the  right 
of  redress,  near  to  which  lie  the  questionable  rights  of  punish- 
ment and  of  conquest. 

Inasmuch  as  rights  and  obligations  are  correlative,  there  is 


an  oblioation 


lying 


on  every  state  to  respect  the 


Oblig.xtions  • i j-  i . 

and  rights  rights  ot  cveiw  otliei',  to  abstain  from  all  iniurv  and 

correlative.  ° y . . ■*  . 

wrong  towards  it,  as  ivell  as  towards  its  subjects. 
These  obligations  are  expressed  in  international  law. 


1 The  English  language  wants  a term  besides  citizen  and  subject,  more  general 
than  either,  and  without  the  idea  contained  in  the  latter,  of  being  under  the  con- 
trol of  an  individual.  In  this  work  I use  .subject,  for  want  of  a better  word,  to 
denote  all  who  are  under  the  law  ; and  sovereign,  that  in  which  the  sovereign 
power  resides,  whether  an  individual  or  a n.ation.  The  Germans  use  Angehbrige 
des  Staats,  or  Staatsangehbrige,  of  all  persons  belonging  to  an  independent  jural 
cominunit^v,  whether  they  may  be  citizens  or  subjects. 


INTEENATIONAL  LAW. 


17 


§ 19. 


§ 18- 

Most  of  the  above  enumerated  powers  of  states  are  plain, 
but  one  or  two  need  a little  explanation.  Observations 

1.  The  rig-bt  of  reputation.  This  right,  when 
viewed  in  relation  to  individuals,  seems  to  consist  of  i.  Right  of 

, 1 • 1 1 K^putatiru, 

two  parts,  the  one  objective,  — the  right  to  a good  what  ; 
name,  — the  other  subjective,  — the  right  of  exemption  from 
insult  and  causeless  w'ounding  of  the  feelings.  Corresponding 
to  these  rights  are  the  obligations  to  respect  a man’s  reputa- 
tion, and  to  refrain  from  wounding  his  feelings  by  aspersions 
on  his  character.  These  rights  are  generally  blended,  but 
may  exist  apart ; for  instance,  a man  may  insult  another,  or 
make  false  charges  against  him,  when  no  one  else  knows  of 
it.  These  rights,  but  principally  the  objective  one,  form  the 
ground  of  the  prosecutions  for  slander  and  libel ; and  a large 
part  oi  private  feuds  arise  from  their  violation.  The  honor  or 
reputation  of  a state  is  equally  its  right ; and  the  injury  done 
by  violations  of  this  right  will  seem  very  great,  when  we  con- 
sider the  multitudes  who  suffer  in  their  feelings  from  a na- 
tional insult,  and  the  influence  of  the  loss  of  a good  name 
upon  intercourse  with  other  states,  as  well  as  upon  that  self- 
respect  which  is  an  important  element  in  national  character. 
Regard  for  national  reputation,  too,  increases  with  refinement 
and  with  closeness  of  communication.  The  Fijis  or  the 
Hottentots  care  little  how  the  world  regards  them,  but  the 
opinion  of  civilized  nations  is  highly  valued  by  all  those  states 
which  are  now  foremost  in  human  affairs.  Without  such  a 
value  set  on  reputation,  fear  of  censure  could  not  exist,  which 
is  one  of  the  ultimate  bulwarks  of  international  law. 

§ 19- 

2.  The  right  of  redress  exists  in  the  case  of  individuals, 
although  it  would  seem  that  a person  cannot  with  2.  Right  of 
justice  be  his  own  judge  and  redress  himself.  Hence 

the  need  of  courts  and  arbitrations  in  society,  which,  by  their 
impartiality,  knowledge  of  law  and  evidence,  and  habits  of 
2 


18 


INTRODUCTOKY  CHAPTER. 


§ 19. 


judging,  approach,  as  nearly  as  finite  beings  can,  to  the  de- 
cisions of  absolute  truth.  Societies  or  states  must  have  not 
only  the  right  of  obtaining  redress^  but  also  tliat  of  redressing 
themselves  ; the  former,  as  being  just  and  necessai’y  for  the 
protection  of  all  rights  ; the  latter,  because  they  have  no  nat- 
ural superior,  — because  in  fact  they  are  vicars  of  God  Avithin 
a certain  sphere.  It  may  be  said  that  thus  they  become 
judges  in  their  OAvn  causes.  This  is  true,  although  not  in  the 
same  sense,  nor  Avith  the  same  violation  of  justice,  as  Avhen 
private  persons  redress  themselves  ; for  the  proceedings  of 
states  are  more  deliberate,  and  for  the  most  part  the  same 
body  Avithin  the  state  is  not  at  once  the  injured  and  the  re- 
dressing party.  It  may  be  said  also  that  an  impartial  court 
selected  from  other  nations  Avould  be  more  just,  and  ought  to 
decide  in  international  disputes.  This  might  be  desirable, 
but  it  does  not  appear  that  nations  are  for  that  reason  bound 
to  abstain  from  redressing  Avrongs.  The  private  person  has 
a natural  superior  in  the  state  to  which  he  is  bound  to  sub- 
mit ; but  God  has  established  no  such  natural  superior  over 
nations. 

Redress  consists  in  compensation  for  injury  inflicted,  and 
for  its  consequences.  The  right  therefore  ceases 
when  the  injured  party  is  placed  in  as  good  a situ- 
ation as  before.  Mingled  up  in  the  same  concrete  Avith  the 
^ j act  of  redress,  there  may  be  an  act  of  self-protection 
with  self-  aeainst  future  iniurv.  A nation  may  haAm  shoAvn 

protection.  i 

such  a disposition  to  do  wrong,  that  another  may  de- 
mand security  as  Avell  as  indemnity  ; and  this  security  may 
proceed,  for  anything  that  appears,  even  to  the  length  of  de- 
stroying the  Avrong-doing  state’s  existence. 


Redress 

what? 


§ 20  a. 

3.  Grotius  held  that  a state  has  the  right  to  punish  injuries, 
a.  Has  a committed  not  only  against  itself  and  its  subjects, 

state  the  , i ^ t • i 

right  of  but  also  against  others  over  Avhom  it  has  no  guar- 
other  states?  diaiisliip.  “ Sciendum  quoque  est,”  he  says  (II.,  20, 
§ 40)  “ reges  et  qui  par  regibus  jus  obtinent,  jus  habere 


§ 20  b. 


INTERNATIONAL  LAW. 


19 


pcEiias  poscendi  non  tantum  ob  injurias  in  se  aufc  subditos 
suos  commissas,  sed  et  ob  eas  quse  ipsos  peculiaviter  non 
tangunt,  sed  in  quibusvis  personis  jus  naturte  aut  gentium  im- 
mauiter  violant.”  This  right  ho  derives  from  a similar  right 
of  individuals  in  a state  of  nature  ■which  they  gave  up  to  so- 
ciety. He  adds  that  it  is  more  praiseworthy  to  punish  in- 
juries done  to  others  than  to  ourselves,  inasmuch  as  we  arc 
tlien  less  likely  to  be  partial. 

Few,  if  any,  we  suppose,  would  now  undertake  to  defend 
the  explanation  here  given  by  Grotius  of  the  state's  right  to 
punish  ; and  the  extent  which  he  gives  to  the  right  seems 
equally  objectionable.  There  must  be  a certain  sphere  for 
each  state,  certain  bounds  within  which  its  functions  are  in- 
tended to  act,  for  otherwise  the  territorial  divisions  of  the 
earth  would  have  no  meaning.  In  regard  to  the  right  of  pun- 
ishing in  any  case  outside  of  the  bounds  of  the  state  there  may 
be  rational  doubts.  Admitting,  as  we  are  very  ready  to  do, 
that  this  is  one  of  the  powers  of  the  state  over  its  subjects,  we 
can  by  no  means  infer  that  the  state  may  punish  those  who 
are  not  its  subjects,  but  its  equals.  And  yet,  practically,  it 
is  impossible  to  separate  that  moral  indignation  which  ex- 
presses itself  in  punishment  from  the  spirit  of  self-redress  for 
wrongs.  As  for  a state’s  having  the  vocation  to  go  forth, 
beating  down  wickedness,  like  Hercules,  all  over  the  world,  it 
is  enough  to  say,  tliat  such  a principle,  if  carried  out,  would 
destroy  the  independence  of  states,  justify  the  nations  in  tak- 
ing sides  in  regard  to  all  national  acts,  and  lead  to  universal 
war.  And  yet  extreme  cases  of  outrage  may  be  conceived  of, 
where  a burning  desire  to  help  the  weak  abroad,  or  to  punish 
the  oppressor,  ought  hardly  to  be  disobeyed. 

§ 20  h. 

The  inquiry,  whether  a state  has  a right  to  punish  beyond 
its  own  limits,  leads  us  to  the  more  general  and  prac-  Relations  of 
tically  important  inquiry,  whether  a state  is  bound  to  general  jus- 
aid  other  states  in  the  maintenance  of  general  justice, 
that  is,  of  what  it  considers  to  be  justice.  The  prevalent  view 


20 


INTRODUCTORY  CHAPTER. 


§ 20  0. 


seems  to  have  been  that,  outside  of  its  own  territory,  including 
its  ships  on  the  high  seas,  and  beyond  its  own  relations  with 
other  states,  a state  has  nothing  to  do  with  the  interests  of 
justice  in  the  Avorld.  Thus  laws  of  extradition  and  private 
international  law  are  thought  to  originate  merely  in  comity. 
(§§  73,  78.)  Thus,  too,  crimes  committed  by  its  own  citizens 
abroad  it  is  not  bound  to  notice  after  their  return  home.  Thus, 
again,  contraband  trade  is  held  not  to  begin  Avithin  the  neu- 
tral’s borders,  and  outside  of  them,  as  on  the  high  seas,  con- 
cerns the  belligerent  alone.  (§  193.)  And  again,  A\dien  a 
nation  commits  a gross  crime  against  another,  third  parties 
are  not  generally  held  to  be  bound  to  interfere.  This  is  the 
most  received,  and  may  be  called  the  narrow  and  selfish  view. 
On  the  other  hand,  the  broad  vieAv,  that  a state  must  aid  in 
getting  justice  done  evei'yAvhere,  if  its  aid  be  invoked,  and 
even  Avithout  that  preliminary,  Avould  occasion  more  violence 
than  could  thus  be  prevented.  Such  a proceeding,  too,  Avould 
be  unjust,  as  overruling  the  judgments  of  the  laAvful  authority. 

But  there  is  a middle  ground  on  Avhich  the  theory  of  inter- 
national obligation  can  be  rationally  placed.  (1.)  As  already 
said  in  § 20  a,  the  interests  of  justice  require  that  the  state, 
like  eA'ery  moral  person,  shall  have  its  special  sphere  of 
action,  Avithin  which  it  may  not  be  invaded,  except  in  extreme 
and  outrageous  cases, — Avhich  cases  are  contemplated  by  the 
actual  laAv  of  nations.  (§§  43,  51,  IIG,  end.^  (2.)  The  moral 
being,  much  more  the  state,  — Avhich,  as  a member  of  a com- 
munity of  nations,  is  interested  in  the  prevalence  of  justice 
everyAvhere,  and  is  the  only  ultimate  asylum  of  it  when  attacked, 
— is  bound  to  aid  in  maintaining  justice  even  outside  of  its 
own  sphere,  if  this  aid  can  be  so  rendered  as  to  violate  no 
higher  and  more  permanent  rules  of  justice.  (3.)  In  those 
cases  Avliere  another  state  either  invokes  or  does  not  object  to 
its  aid,  a state,  if  its  OAvn  judgment  is  clear  on  the  right  of  the 
case,  may  lend  its  assistance.  (4.)  When  this  aid  to  foreign 
justice  can  be  rendered  within  its  own  territory  the  obligation 
is  clear,  and  thus  the  extradition  of  criminals,  contrary  to  Avhat 
is  usually  taugb.t,  and  to  the  opinion  expressed  in  the  first 


§21. 


INTEPvNATIONAL  LAW. 


21 


edition  of  tliis  work,  cannot  witli  propriety  be  refused  in  cer- 
tain cases.  (§77.)  (5.)  Private  international  law  must  have 

its  origin  in  justice  and  not  in  comity,  so  that  nations,  if  they 
can  only  find  out  what  the  principles  of  justice  here  are,  ought 
to  adopt  them.  (C.)  Some  questions,  as  whether  a state  is 
bound  to  aid  foreign  custom-house  laws  by  preventing  smug- 
gling, and  how  far  a neutral  ought  to  prevent  contraband  trade 
of  its  subjects  and  from  its  ports,  are  beset  with  special  dif- 
ficulties. Of  the  latter  we  shall  speak  hereafter.  (§  193, 
note.)  Of  tlie  former,  we  may  say  that  a tariff  may  be  un- 
reasonable and  deleterious  to  the  interests  of  other  states  and 
thus  unjust;  it  cannot  be  expected  that  aid  can  be  given  in 
such  a case.  But  where  a tariff  is  admitted  to  be  reasonable, 
since  it  is  a necessity  and  is  rightfully  imposed  ; to  break  such 
laws  by  smuggling  is  immoral,  and  a nation  ought,  if  not  to 
restrain  its  people  from  so  doing,  at  least  not  to  encourage  or 
to  screen  from  penalties  those  who  violate  foi-eign  law.  In 
such  cases  the  neglect  of  justice  avenges  itself  by  the  lawless- 
ness of  those  who  are  trained  up  in  the  flagitious  trade. ^ 


§ 21. 

4.  Natural  justice  knows  nothing  of  a right  of  conquest  in 
the  broad  sense  of  that  term,  that  is,  of  mere  superior  4.  is  there 

. . T . 1 1 . . right  of 

rorce,  canying  with  it  the  license  to  appropriate  ter-  conquest? 
ritory,  or  to  destroy  national  life.  Yet,  in  fact,  nations  accept, 
if  they  do  not  justify,  such  a right  of  conquest.  The  reasons 
for  this  are,  in  genei’al,  derived  from  the  rule,  that  it  is  officious 
and  impossible  for  nations  to  sit  as  judges  over  each  other’s 
conduct,  or  in  other  words,  from  the  independence  of  nations. 
(§§  37,  115.)  But  more  particularly  (1.)  in  the  exercise  of 
the  right  of  redress  it  may  be  necessary  to  strip  a wrong-doer 
of  a portion  of  his  territory ; or  in  the  exercise  of  the  right  of 
self-protection,  and,  possibly,  of  punishment,  it  may  be  lawful 
to  deprive  him  of  the  means  of  doing  evil.  (2.)  The  spirit 
of  conquest  generally  urges  one  of  these  pleas  in  its  defense, 
over  the  validity  of  which,  as  we  have  said,  nations  may  not 
^ Compare  K.  v.  Mold  in  a monograph  in  his  StacUsr.  Volkerr.  u.  Politik,  vol.  i. 


22 


INTRODUCTORY  CHARTER. 


§ 21. 

sit  in  judgment.  (3.)  Treaties  genei’all}'^  perfect  the  title 
Avliicli  possession  or  conquest  begins.  (4.)  When  a settled 
state  of  things  follows  a conquest,  it  is  usually  acquiesced  in, 
because,  as  has  been  seen,  if  nations  repaired  each  other’s 
wrongs,  the  way  would  be  open  for  perpetual  Avar.  Thus 
international  laAv  acknoAvledges  the  fact  of  conquest  after  it 
has  become  a permanent  fact  in  the  Avorld’s  history,  and  in 
some  degree,  the  right  also. 

Yet  the  mere  fact  of  having  occupied  territory  or  subjugated 
its  inhabitants,  can  be  no  sufficient  ground  in  justice,  even  in 
a just  Avar,  for  the  exercise  of  the  right  of  conquest.  Redress 
and  punishment  ought  not  to  exceed  due  limits,  nor  ought  self- 
protection to  demand  an  exorbitant  amount  of  security.  In 
accordance  Avith  this  the  spirit  of  conquest  is  regarded  by  the 
nations  as  the  spirit  of  robbery,  and  as  hostility  to  the  human 
race.  This  is  shoAvn  by  their  combinations  to  resist  it,  as  in 
the  Avars  against  Louis  XIV.  and  Napoleon ; by  their  protests 
against  acquisitions  regarded  as  unjust,  and  against  alliances 
formed  for  the  injury  of  Aveak  states;  by  the  pretexts  Avith 
Avhich  aggressors  seek  to  shield  themselves  from  the  condemna- 
tion of  the  Avorld  ; and  by  the  occasional  consent  of  victorious 
nations  to  give  a price  for  territory  acquired  in  Avar ; as  Avhen 
the  United  States  paid  a sum  of  money  to  Mexico  for  lands 
ceded  at  the  peace  of  1848.^ 

A Tlie  Abl)e  de  Mably,  on  this  subject,  uses  tlic  following  langinige  ; “ A pi  iiice 
is  doubtless  in  the  right  in  conquering  a province  -which  belongs  to  him,  and  of 
which  the  restitution  is  refused.  He  can,  even,  to  punish  his  enemy  for  his  in- 
justice and  to  recoinjiense  himself  for  the  expenses  of  war  which  he  has  been 
forced  to  make,  extend  his  conquests  beyond  the  country  which  he  claims  as  his 
own.  But  arms,  of  themselves,  give  no  title  ; they  suppose  an  anterior  one,  and 
it  is  to  try  this  contested  right  that  the  war  is  waged.  AVere  it  otherwise,  a prince 
despoiled  by  his  enemy  would  no  longer  have  any  right  to  the  countries  which 
have  been  taken  from  him,  and  hence  it  would  be  ridiculous  for  the  victor  to  de- 
mand a cession  from  him  in  treaties  of  peace.  AVe  may  add  here  a very  simple 
argument : if  conquests  by  their  nature  form  a legitimate  rigid  of  possession  to 
the  conqueror,  it  is  indifferent  whether  the  war  be  undertaken  on  just  or  unjust 
grounds.”  — Droit  Public,  vol.  i.,  part  2,  109,  ed.  of  Amsterdam  of  1777. 


§23. 


INTERNATIONAL  LAW. 


§ 22. 

Moral  claims  and  duties,  being  to  a great  extent  determined 
by  the  special  circumstances  of  the  case,  cannot  be  so 
easily  defined  and  enforced  as  rights  and  obligations ; 
and  opinions  in  regard  to  them  vary  with  the  varying 
moral  feelings  of  individuals,  of  countries,  and  of  ages. 

Hence  with  the  increase  of  culture,  and  the  greater  sway  of  pure 
religion,  the  influence  of  moral  ideas  over  nations  enlarges. 
No  cause  has  had  greater  efficacy  in  producing  changes  in 
international  law  than  this,  of  which  the  improvements  in  the 
laws  of  war,  and  in  the  treatment  of  individuals  out  of  their 
own  country,  are  good  illustrations.  The  rules  drawn  fi’om 
this  source  are  less  capable  of  being  reduced  to  a theory  than 
those  deducible  from  jural  relations. 

§ 23. 

One  or  two  recognized  branches  of  duty  between  nations 
deserve  a brief  notice.  Particular 

duties 

1.  The  duty  of  humanity,  including  hospitality.  ^ numan- 
This  duty  spends  itself  chiefly  in  the  treatment  of  *‘y- 
individuals,  although  suffering  nations  or  parts  of  nations  may 
also  call  for  its  exercise.  The  awakened  sentiment  of  human- 
ity in  modern  times  is  manifested  in  a variety  of  ways,  as  by 
efforts  to  suppress  the  slave  trade,  by  greater  care  for  captives, 
by  protection  of  the  inhabitants  of  a country  from  invading 
armies,  by  the  facility  of  removing  into  a new  country,  by 
the  greater  security  of  strangers.  Formerly,  the  individual 
was  treated  as  a part  of  the  nation  on  whom  its  wrongs  might 
be  wreaked.  Now  this  spirit  of  war  against  private  individ- 
uals is  passing  away.  In  general  any  decided  want  of  human- 
ity arouses  the  indignation  even  of  third  parties,  excites  re- 
monstrances, and  may  call  for  interposition.  (Comp.  §§  21, 
51.)  But  cruelty  may  also  reach  beyond  the  sphere  of  human- 
ity ; it  may  violate  right,  and  justify  self-protection  and  de- 
mand for  redress. 


24 


INTRODUCTORY  CHAPTER. 


§24. 


§ 24. 

Comity  is  another  duty  of  nations.  To  this  source  may  be 
referred  in  part  the  privileges  conceded  to  ambas- 

2.  Comity.  , . ^ . . 

sadors,  and  the  preference  given  in  certain  cases  to 
foreign  over  domestic  law  by  the  courts  of  Christendom. 
Comity,  as  generally  understood,  is  national  politeness  and 
kindness.  But  the  term  seems  to  embrace  not  only  that 
kindness  which  emanates  from  friendly  feeling,  but  also  those 
tokens  of  respect  which  are  due  between  nations  on  the 
ground  of  right. 

A much  wider  sense  is  given  to  the  term  comity  by  those 
who  embrace  in  it  all  those  praiseworthy  acts  of  one  nation 
towards  another,  which  are  not  stricti  juris^  that  is,  all  that, 
the  refusing  or  withholding  of  which,  although  dictated  by 
malevolence,  is  not  an  injury,  and  so  not  a ground  for  Avar. 
But  usages  originating  in  comity  may  become  rights  by  lapse 
of  time.  (Comp.  Phillimore,  I.,  161,  and  §§  26,  28,  infra.) 

§ 25. 

Some  have  contended  that  there  is  a positive  obligation 
3 Inter-  iiatioiis  to  enter  into  relations  at  least  of  com- 

course.  mei’ce,  so  that  the  refusal  thus  to  act  Avould  be  an 
injury,  and  possibly  a cause  of  Avar.  It  might  be  said  that 
differences  of  climate,  soil,  productions,  and  acquired  skill, 
enable  all  parts  of  the  Avorld  to  aid  one  another,  and  that  this 
clearly  points  out  a divine  destination  and  intention  that  they 
shall  so  act.  But  the  better  opinion  is,  that,  except  in  ex- 
treme cases,  — as  Avhen  one  nation  cannot  do  Avithout  the  pro- 
ductions of  another,  or  must  cross  its  borders  to  get  at  the 
rest  of  the  Avorld,  — this  is  only  a duty,  an  exercise  of  a spirit 
of  good-Avill,  to  be  judged  of  by  each  state  according  to  the 
light  Avhich  it  possesses.  In  all  intercourse  the  tAvo  parties 
concerned  must  settle  the  terms ; hoAV  then  can  one  force  the 
other  into  a treaty  of  commerce,  any  more  than  one  man 
force  another  into  a contract. 

But  althongh  Avriters  are  believed  to  agree  substantially  in 


§ 26.  INTERNATIONAL  LAW.  25 

this,  there  is  a disposition  on  the  part  of  nations  to  act  as 
if  they  had  a right  to  require  others  to  exchange  products  with 
them.  This  has  been  seen  in  the  dealings  of  later  years  with 
certain  Oriental  and  other  states.  But  might  not  one  Chris- 
tian state  with  greater  reason  force  another  to  give  up  its  pro- 
tective tariff  ? 

It  thus  appears  that  intercourse,  which  is  a preliminary  to 
all  international  law,  and  the  condition,  without  which  rights 
and  obligations  would  be  mere  abstract  conceptions,  is  itself 
referable  to  the  class  of  duties,  and  that  the  refusal  to  allow 
it  is  no  injury.  There  is  nothing  more  strange  in  this  than 
in  the  voluntariness  of  all  private  contracts,  as  of  the  marriage 
union,  which  must  be  presupposed  before  any  family  rights 
can  exist.  All  that  rights  serve  for  is,  when  intercourse  is 
given,  to  make  it  jural.  Thus  Ave  see  again  the  voluntary 
quality  of  international  law. 

§ 26. 

Vattel  divides  the  law  of  nations  into  the  natural  or  neces- 
sary^ so  called  because  nations  are  absolutely  obliged  vattei’s  m- 
to  observe  it ; and  the  positive^  proceeding  from  the 
volition  of  nations.  This  latter,  again,  is  subdi- 
vided  into  voluntary,  conventional,  and  customary  laAV,  Avhich 
are  respectiA^el)^  derived  from  presumed,  expressed,  and  tacit 
consent.  Of  voluntary  law  Vattel  says,  that  it  embraces  the 
rules  drawn  from  the  principle  that  nations,  being  equal  and 
independent,  are  obliged  to  suffer  each  other  to  do  many 
blamable  things,  presuming  or  acting  as  if  they  were  right. 
Thus  capture  in  war  is  valid,  Avhether  made  by  the  aggressor 
or  the  injured.  But  there  seems  to  be  no  reason  for  setting 
off  this  as  a distinct  branch,  and  it  is  by  no  means  clearly  de- 
fined. Such  cases  as  Vattel  contemplates  are  to  be  referred 
to  the  obligation  under  Avhich  nations  lie  of  not  interfering 
with  each  other's  sovereignty,  and  thus  run  back  to  the  nec- 
essary law  of  nations. 

Dr.  Wheaton,  justly  discarding  this  subordinate  division  of 
volmitary  law,  makes  natural  law  one  genus,  and  voluntary, 


26 


INTRODUCTORY  CHAPTER. 


§ 27. 


another,  under  which  latter  conventional  and  customary  ai’6 
included.  The  division  of  international  law  into 
primitive  and  secondary  law,  is  altogether  similar  to 
this,  primitive  being  the  law  of  nature  and  secondary  that  of 
treaty  and  usage.  But  these  divisions,  although  avoiding 
Vattel's  error,  are  of  no  great  value.  For,  (1.)  A require- 
ment of  natural  law  may  be  coufirmed  by  voluntaiwy  as  by  a 
treaty  ; to  which,  then,  of  the  two  does  it  belong  ? (2.)  Con- 
ventional law  hitherto  includes  no  treaties  between  all  the 
Christian  states  of  the  world,  and  thus  is  rather  to  be  taken 
as  evidence  of  what  international  law  is,  than  as  a part  of  it. 
Nay,  treaties  are  often  made  to  except  the  parties  from  the 
operation  of  a real  or  supposed  international  rule.  (3.)  In 
reality  all  international  law  is  voluntary,  not  in  the  sense  that 
it  derives  its  sole  obligation  from  the  will  of  the  parties,  but 
in  the  sense  that  all  nations  in  a certain  circle  agree  to  abide 
by  it.  (4.)  And  again,  all  voluntary  law  is  natural,  being 
built  on  the  foundation  of  the  sacredness  of  agreements. 

§ 27. 

Perhaps  a division  like  the  following  may  have  something 
other  diris-  commeiid  it,  wliicli  separates  the  rights  and  obli- 
lons.  gations  known  to  this  science  into,  (1.)  those  which 
are  deducible  from  natural  /ms,  which  no  action  of  a sover- 
eignty began  or  can  terminate  ; (2.)  those  deducible  from 
the  idea  of  a state ; (3.)  those  which  are  begun  and  can  be 
ended  by  compact,  express  or  tacit.  Another  division  still 
which  we  have  made  already  (§  2),  follows  the  division  of  the 
three  grounds  or  reasons  for  international  rules,  namely, /us, 
morality,  and  convenience.  The  first  class  comprehends  natu- 
ral rights  and  obligations,  which  can  be  defined  and  enforced. 
The  second,  duties  and  moral  claims  which  cannot  be  easily 
defined,  and  need  compact  to  establish  them ; and  the  third, 
arrangements  of  a purely  voluntary  nature.  A very  consid- 
erable part  of  international  law  is  included  under  the  second 
and  third  of  these  heads  ; a fact  which  serves  to  show  the 
highly  positive  or  voluntary  nature  of  much  of  the  science. 


INTERNATIONAL  LAW. 


27 


I 28. 

Thus  exterritoriality,  private  international  law,  the  rules  of 
respect,  some,  at  least,  of  the  regulations  touching  ambassa- 
dors, the  laws  of  war  to  a great  extent,  are  of  this  description. 
These  parts  of  the  science  cannot  be  deduced  from  a theory, 
nor  could  they  have  arisen  prior  to  a long  experience. 

§28. 

Whether  the  free  assent  of  nations  take  the  form  of  ex- 
press agreement  or  of  usage,  it  places  them  alike  custom  and 
under  the  obligation  of  contract.  Customs  Avithin  aiTkesomces 
each  country  existed  before  statutes,  and  so  observ- 
ances  come  in  imperceptibly  and  control  the  conduct  of  a 
circle  of  nations.  A nation  Avhich  grants  privileges  to  an- 
other by  tacit  consent,  and  then  revokes  them  Avitliout  cause, 
may  commit  an  injury  just  as  if  it  had  broken  a treaty.  For 
example,  intercourse  may  become  a right  by  becoming  a fact, 
and  to  end  it  Avithout  an  express  cause,  Avould  be  a proof  of  a 
hostile  mind. 

It  is  to  be  remarked,  also,  that  not  only  obligations  of  nat- 
ural justice  are  recognized  in  this  tacit  AA^ay,  but  duties  be- 
come obligations,  and  claims  or  conveniences,  allowed,  be- 
come rights,  just  as  by  formal  contract.  A nation  may  grant 
the  privilege  of  transit  to  the  troops  of  another  by  treaty ; it 
has  noAV  become  a right.  The  same  thing  may  come  about  by 
custom  or  tacit  consent.  It  might  seem  as  if  nations  could 
alter  their  conduct  at  pleasure,  Avithin  the  spheres  of  moral 
claims  and  convenience.  But  if  they  have  sanctioned  a iisage 
by  long  permission  Avithout  protest,  they  have  laid  an  obliga- 
tion on  themselves,  and  cannot  alter  it.  It  may,  hoAvever,  be 
difficult  to  say  when  such  obligations  begin,  for  instance,  when 
transit,  silently  suffered,  becomes  a kind  of  servitude  on  the 
soil.  There  is  a difference,  also,  in  usages.  Mere  forms  of 
intercourse  may  have  little  binding  force,  but  principles  ad- 
mitted in  common  in  a silent  AA'ay,  and  giving  birth  to  com- 
mon habits,  as  well  as  mutual  privileges  conceded  without 
treaty,  appeal  to  the  moral  sense  of  nations. 


28 


INTRODUCTORY  CHAPTER. 


§29. 


§ 29. 

As  soon  as  a nation  lias  assumed  the  obligations  of  interna- 
interna-  tioiial  hiw,  they  become  a portion  of  the  law  of  the 
adoTtU'by  to  govern  the  decisions  of  courts,  the  CQiiduct 

municipal.  I'ulers  aiid  that  of  the  people.  A nation  is 

bound  to  protect  this  part  of  larv  by  statute  and  penalty  as 
much  as  that  part  which  controls  the  jural  relations  or  in 
other  ways  affects  the  actions  of  individuals.  Otherwise  it  is 
a dead  letter  ; there  is  a Avant  of  faith  towards  foreign  powers, 
and  there  is  danger  of  quarrel  ending  in  war.  All  Christian 
states  have,  it  is  believed,  in  this  way  sanctioned  international 
law,  so  far  as  it  seemed  to  them  necessary.  It  is,  says  Black- 
stone,  “ adopted  in  its  full  extent  by  the  laws  of  England  ; 
and  Avhenever  any  question  arises  Avhich  is  properly  subject  to 
its  jurisdiction,  it  is  held  to  be  a part  of  the  law  of  the  land.” 
“ As  being  a part  of  the  common  law  of  England,  the  law  of 
nations  is  adopted  by  our  oavu  law  also,  for  it  is  well  settled, 
that  the  common  law  of  England,  so  far  as  it  may  be  con- 
sistent with  the  Constitution  of  this  country,  and  remains  un- 
altered by  statute,  is  an  essential  part  of  American  jurispru- 
dence.” ^ Parts  of  it,  moreover,  have  received  an  express 
sanction  from  the  Constitution  and  Statutes  of  the  United 
States. 

§ 30. 

The  helps  for  ascertaining  what  international  law  is,  or  lias 
Aids  for  been,  may  be  derived  principally  from  the  following 
whiri’nter-  documeuts  : — 

natiouai  law  laws  of  various  poi’ts  01'  disti'icts,  which 

had  a commercial  importance  in  mediseval  Europe. 

2.  The  treaties  in  Avhich  a large  number  of  important  na- 
tions have  had  a part,  as  the  treaty  of  Westphalia,  the  Con- 
gress of  Vienna,  and  the  recent  treaty  of  Paris,  in  1856.  Other 
political  treaties  are  evidences  of  an  opinion  entertained  by 
the  parties  in  regard  to  certain  provisions  of  the  law  of  na- 
tions ; and  that,  rvliether  they  sanction  these  provisions  or 

^ 1 Kent,  Lect.  1. 


§31. 


INTERNATIONAL  LAW. 


29 


suspend  their  operation.  Much  the  same  thing  may  be  said 
of  treaties  of  commerce,  which  often  touch  on  mooted  ques- 
tions of  maritime  law.  A brief  statement  of  the  leading 
features  of  the  principal  political  treaties  since  the  Reforma- 
tion constitutes  the  second  appendix  to  this  volume. 

3.  Judicial  decisions,  Avhich  often  set  forth  in  the  clearest 
manner  the  state  of"  the  law  as  it  is  understood  by  the  ablest 
legal  authorities  of  a particular  country,  and  Avhich,  although 
not  always  followed,  command  respect  in  other  countries.  The 
decisions  of  the  English  courts,  especially  of  the  Admiralty 
under  Sir  William  Scott  (Lord  Stowell),  although  taking  a 
view  of  neutral  rights  on  the  sea  rvhich  is  noAV  becoming  ob- 
solete, are  distinguished  for  their  ability,  and  haA'e  had  a great 
influence  on  opinion  in  this  country.  Many  decisions  of  the 
Supreme  Court  of  the  United  States  involve  points  of  inter 
national  law,  — a court,  before  Avhich,  originally,  “ all  cases 
touchmg  ambassadors,  other  public  ministers,  and  consuls,” 
and,  ultimatel}",  various  questions  affecting  treaties  and  rela- 
tions Avith  foreign  countries  can  be  brought. 

4.  State  papers  on  controverted  points,  such  as  those  writ- 
ten in  our  OAvn  country  by  Jefferson,  Hamilton,  Webster,  and 
Marcy. 

5.  Treatises  on  this  branch  of  science,  or  on  some  title  of  it, 
some  of  which  Avith  reason,  or  by  accident,  have  acquired  a 
standing  above  others.  A list  of  the  most  eminent  text- 
writers  may  be  found  in  the  first  appendix  to  this  work. 

§ 31. 

In  tracing  the  progress  of  international  law,  that  is  of  views 
or  theories  concerning  it,  Ave  may  notice  several  stages,  more 
or  less  clearly  defined,  through  Avhich  it  has  passed.  1.  Among 
the  ancients  Ave  have  a recognition  of  right  and  Avrong  in  the 
intercourse  of  states  together  Avith  some  rules  regulating  inter- 
course and  some  rules  of  humanity  in  war,  — placed  chiefly  un- 
der the  sanction  of  religion,  — but  no  separation  of  this  branch 
of  law  from  the  rest,  as  a distinct  department.  (§  8.)  This 
period  continued  until  after  the  revival  of  learning.  In  the 


30 


INTRODUCTORY  CHAPTER. 


§ 31. 

Middle  Ages  the  science  was  still  undeveloped,  but  religious 
institutions  and  antipathies  modified  the  practice  of  Christian 
states.  (§  8.)  Dui-ing  the  revival  of  learning,  a spirit  arose 
in  Italy,  which  made  light  of  all  obligations  between  states, 
and  almost  deified  successful  wickedness.  Soon  after  this,  we 
perceive  that  the  forerunners  of  Grotius,  as  Suarez,  Ayala, 
and  above  all,  Albericus  Gentilis,  are  aware  that  a system  of 
international  law  ought  to  be  evolved,  and  are  working  out 
particular  titles  of  it.  (Append.  I.) 

2.  With  Grotius  a new  era  begins.  (§  11,  Append.  I.,  C.) 
His  great  aim  was  practical,  not  scientific,  — it  was  to  bring 
the  practice  of  nations,  especially  in  w^ar,  into  conformity  with 
justice.  He  held  firmly  to  a system  of  natural  justice  between 
states,  without,  however,  very  accurately  defining  it.  To  posi- 
tive law,  also,  originated  by  states,  ho  conceded  an  obligatory 
force,  unless  it  contravened  this  justice  of  nature.  In  setting 
forth  his  views,  ho  adduces  in  rich  abundance  the  opinions  of 
the  ancients,  and  illustrations  from  Greek  and  Roman  history 
The  nobleness  of  his  aim,  and  his  claim  to  respect  as  the  father 
of  the  science,  have  given  to  the  treatise  “De  Jure  Belli  et 
Pacis  ” an  enduring  influence. 

3.  After  Grotius  there  appear  two  tendencies.  One  is  to 
disregard  all  that  is  positive  and  actual  in  the  arrangements 
between  nations,  and  to  construct  a system  on  the  principles 
of  natural  law  ; in  which  way  a law  for  states,  differing  from 
ethics  and  natural  justice,  is  in  fact  denied.  This  tendency  is 
represented  by  Puffendorf.  (§  12.)  The  other  tendency  was 
a reaction  against  this  writer,  and  satisfied  itself  with  repre- 
senting the  actual  state  of  international  law,  as  it  exists  by 
usage  and  treaty,  without  setting  up  or  recognizing  a standard 
of  natural  justice  by  its  side.  Bynkershoek  and  Moser  (see 
Append.  I.,  C.),  with  Martens  and  others  in  more  recent  times, 
are  examples  here.  Many  writers,  however,  treading  in  the 
steps  of  Grotius,  regard  natural  justice  as  a source  of  right, 
with  which  the  practice  of  states  must  be  compared  and 
brought  into  conformity,  and  which  may  not  be  neglected  in 
a scientific  system. 


§34. 


INTEKNATIONAL  LAW. 


31 


§ 32; 

There  has  been  a general  progress  in  the  views  of  text- 
writers  since  the  age  of  Grotius,  and  a substantial  agreement 
between  those  of  all  nationalities  at  the  same  era.  And  yet 
minor  differences  are  very  observable.  Some  of  the  most 
striking  of  these  are  the  differences  between  the  English  and 
the  Continental  doctrine,  arising  from  the  insular  position  of 
Great  Britain,  from  her  commercial  interests,  and  her  power 
on  the  sea.  Thus  we  find  her  behind  the  Continent  in  re- 
specting the  sanctity  of  ambassadors  until  into  the  eighteenth 
century.  (§  96.)  Thus  also  while  her  practice  in  land  wars 
has  been  humane,  her  sea-rules  and  the  decisions  of  her  courts 
have  in  several  ways  borne  hardly  upon  neutrals.  It  is  worthy 
of  notice  that  our  courts  have  followed  English  precedents, 
while  our  Government,  as  that  of  a nation  generally  neutral, 
has  for  the  most  part  leaned  in  its  doctrines  and  treaties  to- 
wards Continental  views. 

§ 33. 

Hitherto,  as  may  be  gathered  from  what  has  just  been  said, 
there  is  something  of  that  same  uncertainty  and  want  of  au- 
thority to  be  discovered  in  international  law,  which  attends  on 
other  political  and  jural  sciences.  This  is  due  to  causes  al- 
ready noticed  : (1)  to  the  changes  in  the  science  growing  out 
of  changes  in  the  intellectual  and  moral  culture  of  successive 
generations ; and  (2)  to  the  fact  that  states,  according  to  their 
temporaiy  or  their  permanent  interests,  have  set  up  or  fol- 
lowed different  rules  of  action. 

Whether  anything  can  be  done,  by  means  of  an  interna- 
tional code,  to  bring  more  certainty  and  precision  into  the 
science  will  be  considered  in  the  sequel.  (§  222  and  onward.) 

§ 34. 

In  every  branch  of  knowledge,  the  history  of  the  branch 
is  an  important  auxiliary  to  its  scientific  treatment.  From 
the  changes  and  improvements  in  the  law  of  nations,  it  is  evi- 


32  INTRODUCTORY  CHAPTER.  §34. 

dent  that  the  history  of  this  science  — both  the  history  of 
^ opinion  and  of  practice  — is  deserving  of  especial  at- 
interna-  tention.  It  is  a leading  chapter  in  the  history  of  civil- 
its  import-  izatioii.  It  fumislies  valuable  hints  for  the  future. 

Notwithstanding  its  dark  passages,  it  is  calculated  to 
animate  the  friends  of  justice  and  humanity.  It  explains  the 
present  state  of  the  science,  and  indicates  the  obstacles  which 
liave  retarded  its  advance.  Hence  the  value  of  such  works  as 
Laurent’s  “ Histoire  du  Droit  des  Gens,”  which  in  three  vol- 
umes embraces  the  East  and  the  classical  nations  of  antiq- 
ity.  Ward’s  “Enjjsrffy,”  embra^ig  the  period  from  the  time 
of  the  Greeks  and  Romans  to  the  age  of  Grotius,  and  Whea- 
ton’s history,  which  in  a sense  continues  Ward’s  work  down 
to  the  peace  of  Washington  in  1842,  is  surpassed  by  that  of 
few  systematic  treatises.  Histories  of  treaties  also  are  of 
great  importance,  as  aids  in  understanding  the  treaties  them- 
selves, which  are  a principal  source  of  international  law. 

It  will  be  one  of  our  primary  aims  in  this  woi’k,  as  far  as 
our  narrow  limits  permit,  to  append  historical  illustrations  to 
the  leading  titles,  in  the  hope  of  exhibiting  the  progressive 
character  of  the  science,  and  of  conferring  a benefit  on  the 
student  of  history.  It  ought,  however,  to  be  I'emarked  that 
historical  precedents  must  be  used  with  caution.  History 
tells  of  crimes  against  Ihe  law  of  nations,  as  well  as  of  its 
construction  and  its  observance,  of  old  usages  or  principles 
given  up  and  new  ones  adopted.  There  is  no  value  in  the 
mere  historical  facts,  apart  from  the  reasons  or  pretexts  for 
them,  and  from  their  bearings  on  the  spread  of  justice  and  the 
sense  of  human  brotherhood  in  the  world. 

§ 35. 

A method  which  aims  to  be  practically  useful  in  interna- 
tional law,  must  take  notice  of  the  great  importance 
sued  in  this  which  questions  pertaining  to  a state  of  war  have 
■ in  that  science.  In  both  peace  and  Avar  the  essential 
qualities  of  states  — their  sovereignty  and  the  like  — must 
be  exercised ; but  war  suspends  the  operations  of  certain 


§35. 


INTERNATIONAL  LAW. 


33 


rights,  and  calls  into  activity  certain  others.  Then  again,  in 
peace  every  state  sustains  a similar  relation  towards  every 
other ; but  in  war  a belligerent  state  has  one  relation  to  its 
enemy,  and  -another  to  all  states  besides ; or,  in  other  words, 
the  rights  and  obligations  of  non-belligerents  or  neutrals  now 
begin  to  exist,  or  to  become  practically  important.  We  have, 
then,  the  general  faculties  or  powers  of  states,  their  relations 
of  peace,  and  their  relations  in  or  owing  to  war.  In  the 
method  here  pursued,  these  general  faculties  or  essential  pow- 
ers of  states,  instead  of  forming  a distinct  division  by  them- 
selves, constitute  together  with  the  rights  and  moral  claims, 
the  obligations  and  duties,  which  have  their  operation  espe- 
cially in  a state  of  peace,  the  first  part  of  the  science.  Then 
follo’u’s  the  second  part,  having  to  do  with  a state  of  war. 
Our  First  Part  consists  of  the  following  chapters;  the  first 
treating  of  the  rights  and  obligations  of  states  as  independeait 
sovereignties ; the  second,  of  the  right  of  property,  and  rights 
over  territory  belonging  to  states  ; the  third,  of  the  rights 
and  duties  of  intercourse  between  nations,  with  the  relations 
of  foreigners  within  the  territory  to  the  state  ; the  fourth,  of 
the  forms  and  agents  of  intercourse  between  the  states  them- 
selves ; the  fifth,  of  the  right  of  contract,  or  of  treaties.  The 
second  part,  treating  of  the  relations  in  a state  of  war,  con- 
sists of  two  principal  chapters,  in  the  first  of  which  the  state 
of  war  as  affecting  the  belligerents  themselves  is  considered  ; 
and  in  the  second,  the  state  of  war  as  bearing  on  the  rights 
and  obligations  of  neutrals. 

3 


PART  I. 


THE  ESSENTIAL  POWERS  OF  STATES,  AND  THEIR  RIGHTS 
AND  OBLIGATIONS,  ESPECIALLY  IN  A STATE  OF  PEACE. 


CHAPTER  I. 

EIGHTS  OF  STATES  AS  INDEPENDENT  SOVEREIGNTIES.  — COR- 
RESPONDING OBLIGATION  OF  NON-INTERFERENCE  AND  EX- 
CEPTIONS TO  IT  CLAIMED  OR  ADMITTED  IN  THE  PRACTICE 
OF  NATIONS. 


A STATE  is  a community  of  persons  living  within  certain 
limits  of  territory,  under  a permanent  organization 
what  ? Avhicli  aims  to  secure  the  prevalence  of  justice  by 
self-imposed  law.  The  organ  of  the  state  by  which  its  rela- 
tions with  other  states  are  managed  is  the  government. 

A body  of  pirates  may  be  organized  under  law,  but  is  no 
Pirates  no  State,  being  associated  for  temporary  purposes,  and 
designing  to  act  unjustly  by  its  very  existence.  A 
state  might  arise  out  of  a nest  of  pirates,  but  would  not  begin 
to  be  a state  until  it  laid  aside  its  piratical  character.  Thus 
it  has  been  doubted  whether  the  Barbary  powers  were  any- 
thing more  than  associations  of  pirates.  But  having  groivn 
in  the  course  of  time  more  just  and  civilized,  they  are  now 
taken  into  the  community  of  nations.^  Those  pirates  of  Cili- 
cia and  Isauria,  on  the  other  hand,  whose  powerful  confeder- 
acy Pompey  broke  up,  clearly  formed  no  state,  their  settle- 
ments being  strongholds  contrived  to  secure  their  families  and 
their  plunder. 

1 Comp.  Bynkershoek,  Qwzst.  Juris  Publici,  i.,  § 17. 


§37. 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


35 


§ 37. 

From  the  nature  and  destination  of  a state,  it  must  in  a 
sense  be  as  truly  separate  from  the  rest  of  the  world,  Essential  at- 
as  if  it  were  the  only  state  in  existence.  It  must 
have  an  exclusive  right  to  impose  laws  within  its 
own  territory,  the  sole  regulation  in  general  of  its  subjects, 
the  sole  determining  power  in  regard  to  the  forms  of  its  or- 
ganization. No  reason  can  be  assigned  why  in  a group  of 
states  one  should  have  a right  to  interfere  in  the  legislation  or 
administration  of  the  rest,  which  would  not  give  each  of  them 
the  same  right  in  turn.  Nor  can  any  reason  be  found  why 
one  state  ought  to  have  more  rights  or  different  rights  than 
any  other.  W e find  it  necessary  for  the  conception  of  states, 
and  for  their  occupying  the  sphere  which  the  Author  of  so- 
ciety has  marked  out  for  them,  to  predicate  of  them  sove- 
reignty^ independence,  and  the  equality  of  each  with  the  rest. 
And  these  its  attributes  or  rights  each  has  a right  to  pre- 
serve ; in  other  Avords,  to  maintain  its  state  existence.  These 
three  attributes  cannot  exist  apart,  and  perhaps  the  single  con- 
ception of  sovereignty,  or  of  self-protection,  may  include  them 
all.  (§  17.) 

By  sovereignty  Ave  intend  the  uncontrolled  exclusNe  exer- 
cise of  the  powers  of  the  state ; that  is,  both  of  the  power  of 
entering  into  relations  Avith  other  states,  and  of  the  power  of 
governing  its  OAvn  subjects.  This  power  is  supreme  within  a 
certain  territory,  and  supreme  over  its  OAvn  subjects  wherever 
no  other  sovereignty  has  jurisdiction. 

By  independence  we  intend  to  set  forth  the  negative  side  of 
sovereignty,  that  is,  to  deny  that  any  other  state  has  any  right 
to  interfere  Avith  the  exercise  of  a state’s  rio:hts  and  sovereign 
poAvers.  Thus  a state  may  make  treaties,  political  or  commer- 
cial, or  may  make  war,  or  change  its  laAvs,  executive  officers, 
or  form  of  goAmrnment,  or  by  a just  policy  add  to  its  resources 
so  as  to  become  richer  and  stronger  than  other  states,  or  plant 
colonies  or  acquire  territory,  or  become  consolidated  Avith  other 
states  ; Avhile  no  other  state  shall  have  any  just  cause  to  impede 
or  interfere  with  its  unfettered  action. 


36 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


§37. 


By  cqiiality  is  not  meant  equality  of  honor  or  respect,  or 
equality  of  rank  according  to  the  etiquette  of  courts,  or  the 
right  to  have  the  same  commercial  or  political  privileges  which 
have  been  granted  to  other  states,  but  simply  equality  of  state 
rights^  that  is,  an  equal  degree  of  sovereignty  and  the  posses- 
sion of  all  the  same  rights  which  other  states  exercise.  This 
is,  perhaps,  simply  the  exhibition  of  the  quality  of  state  sove- 
reignty in  a different  light.  States  which  are  truly  sovereign 
are  necessarily  equal  in  rights,  since  the  quality  of  full  sove- 
reignty has  no  degrees,  and  the  state,  as  such,  has  certain 
rights  from  its  very  existence. 

It  is  scarcely  necessary  to  add,  that  difference  of  size  or  of 
power  neither  adds  to  nor  subtracts  from  the  sovereignty  of 
a state,  nor  affects  its  rights  in  any  particular. 

A state,  however,  may,  by  its  free  act,  surrender  a part  of 
These  attri-  tlicse  lights,  01’  it  may  give  up  its  existence  and  be- 
beSa^i'iade  merged  in  another  organization.  The  partial 

In  >jy  surrender  occurs  sometimes  in  confederations.  The 
confeaeriited  sj^atcs.  couiposiiig  sucli  Confederation  may  come  to- 
getlier  on  a vaiiety  of  conditions,  most  of  v hich  imply  a sur- 
render of  sovereignty  and  independence  in  some  degree,  and 
tlierefore  the  discontinuance  of  their  existence  as  states,  in 
the  highest  sense  of  the  word.  Some  leagues  take  away  from 
their  members  the  right  of  separate  peace  and  war,  and  per- 
haps add  to  this  a central  board  for  the  adjustment  of  disputes. 
Others  aim  at  a closer  bond  between  their  members,  and  con- 
fer all  power,  in  foreign  relations,  as  well  as  various  other  pre- 
rogatives, upon  a central  legislature  and  administration  created 
by  the  league.  Others,  again,  aim  to  secure  a very  loose  kind 
of  union,  — one  which  allows  its  members  to  make  political 
leagues  with  foreign  states,  and  to  make  war  and  peace  sep- 
arately, but  has  a common  head  and  a court  for  the  settlement 
of  certain  disputed  claims.  On  types  like  these  respectively 
the  Achsean  League,  our  Union,  and  the  German  Confedera- 
tion in  its  more  modeiai  form,  have  been  constructed. 

A state  which  is  under  the  protection  of  another  may  be 
sovereign  in  some  respects,  but  not  absolutely  sovereign. 


§38. 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


37 


Sucli  was  tlie  republic  of  Cracow,  while  it  lasted  ; such  were 
lutely  the  Ionian  Islands,  under  English  protection ; or  by  pro- 
Moldavia  and  Wallachia  under  that  of  Turkey,  with  states, 
the  guaranty  of  the  great  European  powers;  Serviaand  Egypt 
under  Turkey,  with  a different  dependence ; Monaco  under 
Sardinia.^ 

For  the  purposes  of  international  law  that  state  only  can  be 
regarded  as  sovereign  which  has  retained  its  power  sovereignty 
to  enter  into  all  relations  with  foreign  states,  what-  national  law 
ever  limitations  it  may  impose  on  itself  in  other  re- 
spects.  Thus  the  states  of  this  Union  in  the  view  of  our  science 
are  not  sovereign,  for  they  cannot  exercise  the  treaty-making 
power,  nor  that  of  making  war  and  peace,  nor  that  of  sending 
ambassadors  to  foreign  courts.  They  can  only  exercise  to- 
wards foreign  nations  those  private  rights  which  may  pertain 
to  any  individual  or  association.  It  is  to  be  observed,  how- 
ever, that  between  states  of  qualified  sovereignty  the  law  of 
nations  has  application,  so  far  forth  as  it  is  not  shut  out  by 
restrictions  upon  their  power. 

In  a state  which  is  formed  by  a union  of  states,  there  is  no 
doubt  that  the  central  government  is  responsible  for  the  acts 
of  bodies  which  have  no  existence  in  the  view  of  international 
law.  There  is  a weak  point  in  our  Constitution  in  this  respect, 
for  the  responsibility  must  be  borne  by  the  central  government, 
but  the  evil  cannot  always  be  abated.  (Comp.  Phillimore,  2d 
ed.,  i.,  162,  § 130.)  2 

§ 38. 

A state  is  a moral  person,  capable  of  obligations  as  well  as 
rights.  These  relations  continue  after  it  has  passed  through 
a change  of  constitution,  for  notwithstanding  the  change  the 

^ Comp.  Wheaton,  Elements,  i.,  2,  pp.  70,  71. 

2 ilcLeod,  a Biitish  captain,  concerned  in  the  capture  of  the  Caroline  (see  § 
174),  was  taken  in  the  State  of  New  York,  and  tried  for  murder.  Great  Britain 
assumed  the  responsibilit}"  for  his  acts  and  demanded  him.  Our  government  saw 
the  justice  of  tliis,  but  could  not  force  New  York  to  give  him  up.  Congress  passed 
a law  after  this  giving  the  Courts  of  the  United  States  jurisdiction,  where  a 
foreign  government  assumes  the  responsibility  of  a crime.  ( U.  S.  Stat.,  v.,  539.) 
T.  S. 


38 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


§38. 


state  may  still  preserve  its  attributes  and  functions.  No  act  of 
its  own  can  anniliilate  an  obligation  to  another  state  •, 
ligaUonsnot  aiid  its  riglits  still  continue,  unless  its  former  consti- 
a'^chTpge  of  tutioii  of  govemmeut  was  the  condition  on  which  the 
goverumeut.  gf  other  states  towards  it  were  founded. 

The  general  rule  then,  as  all  admit,  is,  that  rights  and  obliga- 
tions survive  a change  of  government  or  a revolution.  So 
when  a nation  separates  into  parts,  or  unites  with  another 
state  to  form  a new  whole,  it  cannot,  even  by  such  a process, 
which  destroys  or  modifies  its  existence,  divest  itself  of  its 
obligations.  Thus  debts  due  to  foreigners  outlast  all  such 
mutations,  and  not  to  provide  for  their  payment  would  be  a 
violation  of  right.  When  at  the  formation  of  our  Federal 
Constitution  the  States’  debts  were  assumed,  and  when  at  the 
separation  of  Norway  from  Denmark  the  old  debt  of  the  united 
countries  was  equitably  divided,  these  were  acts  of  simple 
justice  and  good  faith.  It  may  happen,  however,  that  a union 
or  division  of  states  renders  a past  obligation  of  treaty  impos- 
sible, or  inconsistent  with  present  relations.  Thus,  suppose 
that  Scotland  before  its  union  with  England  had  engaged  to 
furnish  France  with  a contingent  of  troops.  This  engagement 
could  hardly  be  thought  binding  after  the  union  ; much  less 
Avould  one  be  binding,  which  contemplated  an  alliance  against 
the  very  country  with  which  a union  now  subsisted.  It  may 
be  said,  indeed,  that  the  prior  engagement  forbade  the  forming 
of  a new  engagement  inconsistent  with  it.  This  is,  indeed,  a 
rule  of  right,  but  not  a rule  which  is  valid  against  important 
state  necessity.  There  is  another  extreme  case,  again,  where 
a change  of  government  may  dissolve  prior  obligations.  It  is 
where  a despotical  or  usurping  government  has  contracted 
debts  or  made  treaties  against  a nation  attempting  to  recover 
its  liberties.  The  government  is  de  facto  in  possession  of 
authority,  and  thus  its  acts  are  lawful ; nevertheless  obligations 
entered  into  to  subjugate  the  people  must  be  regarded  in  this 
extreme  case  as  pertaining  to  the  government  alone,  and  not 
as  resting  on  the  people.  (Comp.  § 153.)^ 

1 There  is  a distinction  between  the  sovereignty  of  a state  and  that  of  a prince 


§40. 


EIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


39 


§39. 

A state  may  sustain  relations  to  other  states,  and  perform 
its  offices  generallj^  under  any  form  of  government.  aii  forms  of 
The  law  of  nations  preserves  an  entire  indifference 
to  constitutions,  so  long  as  they  do  not  prevent  fulfill-  iiu^er^atioiT-^ 
pent  of  obligations.  Every  state  is  in  its  eye  legit- 
iinate.  And  in  matter  of  fact  the  countries  which  profess  to 
be  bound  by  the  Christian  or  European  law  of  nations,  differ 
exceedingly  from  one  another  in  their  constitutions,  which  con- 
tain specimens  of  absolute  and  constitutional  hereditary  mon- 
archy, of  confederated  democracies,  and  until  1870  of  an  elect- 
ive ecclesiastical  principate. 


§ 40. 

Hence  it  follows  that  if  a state  has  altered  its  form  of  gov- 
ernment, or  by  some  revolution,  peaceful  or  violent, 
has  suffered  a disruption,  or  has  become  united  with  aiiaw knows 
another,  all  these  things  are  beyond  the  province  of  m°ints'’Je™ 
international  law,  whose  only  inquiry  is,  whether  a 
cetain  community  or  organization  is  in  matter  of  fact  a separate 
independent  existence,  performing  the  functions  of  a state,  and 
able  to  take  upon  itself  state  responsibilities.  The  question 
of  a state’s  right  to  exist  is  an  interyial  one,  to  be  decided  by 
tliose  within  its  borders  who  belong  to  its  oi’ganization.^  To 
bring  the  question  before  external  powers,  not  only  destroys 
sovereignty,  but  must  either  produce  perpetual  war,  or  bring 
on  the  despotism  of  some  one  strong  nation  or  strong  confeder- 
acy of  nations,  requii’ing  all  others  to  conform  their  constitu- 
tions to  the  will  of  these  tyrants.  Moreover,  it  is  a question 


The  latter  is  only  representative,  — a mode  of  exercising  the  power  of  the  former. 
If  now  the  prince  is  only  in  form,  and  not  really,  the  representative  of  the  state, 
his  acts  in  extreme  cases  can  be  repudiated. 

1 Bluntschli  (Mod.  Volckerr.,  § 19)  makes  the  following  neat  statement.  The 
questions  whether,  why,  and  in  what  form  a new  state  has  come  into  existence 
belong  to  state  or  political  right.  The  question  whether  and  in  what  capacity  a 
newly  formed  state  may  receive  admission  into  the  community  of  states  is  e sen- 
tiallv  an  international  one. 


40 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


§40, 


outside  of  the  law  of  nations,  which  presupposes  the  fact  that 
nations  exist  and  have  rights,  and  therefore  cannot  first  inquire 
into  their  right  to  exist.  On  the  other  hand,  tl)e  fact  of  the 
existence  of  a state  is  in  general  an  open  one,  easy  to  be  judged 
of,  one  which  involves  no  decision  in  regard  to  the  advantages 
of  one  form  of  government  over  another,  and  the  only  fact 
whicli  nations  need  to  know,  in  order  that  they  may  enter  into 
and  fnlfill  reciprocal  obligations. 

With  these  principles  the  practice  of  nations  on  the  whole, 
and  in  the  long  run,  agrees.  All  in  the  end  acknowledge  the 
government  de  facto.  Of  course,  nations  which  dread  revo- 
lution will  he  more  slow  to  allow  the  title  of  a revolutionary 
government,  or  of  one  where  a family  of  princes  of  the  same 
blood,  or  who  have  been  long  allies,  are  driven  from  the  throne, 
but  they  must  submit  at  last  to  the  inexorable  facts  of  divine 
Providence  and  history.  And  if  this  rule  could  he  overthrown, 
if  a nation  or  set  of  nations  should  act  on  the  plan  of  with- 
holding their  sanction  from  new  nations  with  certain  constitu- 
tions, such  a plan  would  justify  others  who  thought  differently 
in  refusing  to  regard  the  former  any  longer  as  legitimate 
states. 

All  history  is  full  of  examples  of  such  recognitions.  Hol- 
land and  Switzerland,  long  after  their  iirdependence  was  ac- 
knowledged in  the  diplomacy  of  most  European  states,  were 
formally  admitted  into  the  brotherhood  of  nations  at  the  era 
of  the  peace  of  Westphalia.  The  United  States,  the  Spanish 
states  of  South  America,  the  two  French  empires,  the  king- 
dom of  Greece,  all  arose  from  revolutions,  and  have  been  ac- 
knowledged to  possess  the  full  functions  of  states.  Such,  too, 
has  been  the  case  in  regard  to  states  Avhich  have  changed  the 
succession,  as  England  in  1G88,  Sweden  in  1818,  and  also 
where  a disruption  has  taken  place,  as  that  between  Holland 
and  Belgium  in  1830  ; nay,  such  iniquities  as  the  partitions  of 
Poland  have  become  facts  of  history,  into  which  the  laAV  of 
nations  claims  no  right  to  look. 

It  is  almost  needless  to  say  that  this  rule  cannot  have  its 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


41 


§ -H. 

application,  as  long  as  there  is  evident  doubt  Avhetlier  a gov- 
ernment is  a,  fact.  If  the  question  is  still  one  of  armed  strife, 
as  between  a colony  and  a mother  country,  or  between  a state 
and  a revolted  portion  of  it,  to  take  the  part  of  the  colony  or 
of  the  revolted  territory  by  recognition  is  an  injury  and  may 
be  a ground  of  w'ar ; but  every  nation  must  decide  for  itself 
whether  an  independent  state  be  really  established,  and  needs 
not  to  wait  until  the  party  opposing  the  revolutionary  effort 
has  accepted  the  new  order  of  things.  It  is  a safe  rule  in 
contests  involving  the  violent  separation  of  a state  into  parts, 
that  when  the  mother  country,  in  the  case  of  a colony,  or  the 
leading  portion  of  a state,  in  the  case  of  disruption,  gives  up 
active  efforts  to  restore  the  old  order  of  things  by  war,  other 
states  may  regard  the  revolution  as  perfected,  and  a new  state 
as  having  come  into  the  world. 


§ 41. 

The  rule  laid  down  by  Mr.  Harcourt,  in  the  “ Letters  of  His- 
toricus”  (1-35),  is  substantially  the  one  given  in  the  text,  and 
is  shown  by  him  to  have  guided  the  action  of  the  British  gov- 
ernment. It  is  the  only  rule  consistent  Avlth  justice,  for  it  is 
based  on  the  de  facto  independence  of  a newly  organized  com- 
munity which  the  nation  or  state,  to  which  it  formerly  be- 
longed, has  ceased  to  attempt  to  subjugate.  Policy  may  delay 
the  time  of  recognition  after,  perhaps  long  after  the  de  facto 
independence  of  such  a community  has  begun,  but  cannot  act 
as  if  that  were  a fact  which  is  not. 

One  or  two  passages  from  a speech  of  Lord  Lansdowne, 
quoted  in  these  letters,  are  instructive:  “Your  lordships 
are  now  called  upon  to  determine  whether  you  will  advise 
the  Crown  to  recognize  them  [the  Spanish  South  Ameri- 
can States]  in  the  form  of  independent  states  — a question 
which,  be  it  recollected,  involves  a twofold  consideration  : first, 
whether  you  possess  the  right  to  make  tliat  acknowledgment, 
and,  secondly,  whether  ....  the  expediency  of  exercising 
that  right  without  delay  is  equally  clear.”  On  the  first  point 
he  says:  “I  know  of  no  principle  or  mode  by  which  we  can 


42 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


§41. 


ascertain  whether  we  possess  that  right  but  by  considering,  in 
the  first  instance,  whether  those  states  which  form  the  object 
of  our  present  consideration  are  de  facto  independent ; and, 
secondly^  if  they  are  de  facto  independent,  whether  there  be 
any  prospect  of  the  old  government  of  Spain  ever  being  en- 
abled to  recover  its  command  of  them  so  as  to  possess  the 
advantages  she  formerly  did  from  them  ; and  thirdly  . . . . 
whether  they  have  proved  themselves  disposed  and  able  to 
maintain  those  relations  of  amity  and  commerce  which  ought 
to  exist  between  independent  and  friendly  nations.”  If  a crit- 
icism were  made  on  these  extracts,  it  would  naturally  touch 
the  second  position.  Whether  an  old  government,  in  any  case, 
would  ever  be  enabled  to  recover  a revolted  province  or  colony 
now  independent,  is  more  than  mortals  can  tell.  This  goes 
beyond  the  regions  of  fact.  It  would  be  safe  to  say.  Has  an 
old  government  given  up  de  facto  the  struggle  to  subdue  its 
colony  ? The  third  point,  too,  ought  to  be  modified,  if  not 
omitted  entirely,  as  touching  the  expediency  of  the  recog- 
nition. 

When  Louis  XVI.  recognized  the  United  States,  it  was  fol- 
lowed by  war,  and  for  this  the  French  were  prepared. 

As  Mr.  Harcourt  remarks,  an  intervention  creating  a state, 
such  as  those  in  the  cases  of  Belgium,  1830,  and  Greece,  1827, 
is  a transaction  of  another  nature,  beginning  in  armed  force 
— if  resistance  is  offered  — and  involving  recognition,  but 
causing  the  fact  of  independence  by  the  prior  action  of  the 
third  party.  It  is,  in  fact,  a hostile  measure  from  the  begin- 
ning. 

§ 42. 

No  state  is  authorized  to  render  assistance  to  provinces  or 
Assistance  coloifies  Avhicli  are  in  revolt  against  the  established 
government.  For  if  the  existence  and  sovereignty 
of  a state  is  once  acknowledged,  nothing  can  be  done 
to  impair  them ; and  if  tlie  right  of  intei’ference  — in  favor 
of  liberty,  for  instance  — be  once  admitted,  the  door  is  open 
for  taking  a part  in  every  quarrel. 

On  the  other  hand,  there  is  nothing  in  the  law  of  nations 


§43.  RIGHTS  OF  STATES  AS  SOVEREIGNTIES.  43 

■which  forbids  one  nation  to  render  assistance  to  the  estab- 
lished government  in  such  case  of  revolt,  if  its  assistance  is 
invoked.  This  aid  is  no  interference,  and  is  given  to  keej)  up 
the  present  order  of  things,  which  international  law  takes 
under  its  protection.  It  may  be  said  that  this  rule,  together 
with  the  unlawfulness  of  taking  the  side  of  a revolutionary 
party  in  anotlier  state,  must  prevent  wholesome  reforms,  that 
the  partisans  of  despotism  may  thus  use  their  power  against 
free  institutions,  while  the  partisans  of  the  latter  may  not  op- 
pose despotism.  That  this  effect  may  follow  is  quite  possible ; 
still  the  rule  is  an  impartial  one,  as  it  applies  to  any  existing 
state,  whether  free  or  absolute,  to  attempts  against  existing 
liberty  as  well  as  against  existing  tyranny,  ddie  only  other 
conceivable  rules  of  action  for  states  are,  that  in  internal  quar- 
rels every  foreign  state  may  take  whicli  side  it  pleases,  or  that 
no  state  ought  to  assist  either  party.  The  former  coui’se  of 
action  will  find  no  advocates  ; the  other,  which  the  law  of  na- 
tions cannot  be  expected, — -for  the  pi'esent  at  least,  — to  rec- 
ognize, must  indeed  prevent  some  revolutions  from  being  un- 
dertaken, but  cannot  prevent  a change  of  government  when 
demanded  by  a nation’s  united  voice. 

§43. 

The  rule  of  non-interference  in  the  affairs  of  other  states  is 
then  an  established  principle.  But  the  exceptions  to  Exceptions 
it  which  are  admitted,  or  which  are  claimed  to  exist,  J,on^nter. 
are  of  great  importance,  and  there  is  considerable  dif- 
culty  in  determining  what  is  lawful  interference  and  what  is 
unlawful.  For,  first,  tliei’e  may  be  interference  without  a 
show  or  pretense  of  justice.  In  the  second  place,  a nation 
which  has  or  pretends  to  have  causes  of  war  with  another, 
aids  the  revolted  provinces  of  the  latter  in  the  exercise  of 
the  war-right  of  crippling  its  enemy.  In  the  third  place, 
there  are  instances  of  interference  which  can  be  explained 
neither  on  the  ground  of  injustice,  nor  of  a state  of  Avar,  and 
Avhich  the  usage  of  Christian  or  of  many  Christian  states 
tolerates. 


44 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


§ 43. 

Whatever  be  the  interference,  it  can  he  justified  only  as  an 
^ , extreme  measure,  and  on  one  of  the  two  following 

grounds:  (1.)  That  it  is  demanded  b}^  self-pres- 
ervation; (2.)  That  some  extraordinary  state  of 
things  is  brought  about  by  the  crime  of  a government  against 
its  subjects.  And  upon  these  grounds  we  must  judge,  not  only 
of  the  lawfulness  of  interference  at  any  time  pro  re  7iatd,  but 
also  of  the  lawfulness  of  treaties  contemplating  such  interfer- 
ence in  the  future.^  From  the  nature  of  these  grounds  it  ap- 
pears that  they  are  more  or  less  vague  and  under  the  influence 
of  subjective  opinion.  The  danger  to  a state’s  existence  from 
the  designs  of  another,  or  of  others,  evidently  cannot  be  mea- 
sured. While  on  the  one  hand  mere  suspicion,  or  calculation 
of  remote  probabilities,  can  be  no  justifying  cause  of  action  ; 
on  the  other  it  is  hard  to  say,  just  as  in  cases  of  individual 
morality,  how  much  evidence  is  sufficient  to  sanction  that  pro- 
cedure, which  in  ordinary  times  is  unlaAvful.  Thus  much  may 
be  laid  down,  that  a danger  resulting  from  the  healthy  and 
prudent  growth  of  another  state  is  no  reason  for  interference 
whatever,  and  that  good  evidence  of  unjust  designs,  drawn 
from  conduct,  ought  to  be  obtained  before  any  measures  may 
be  taken  to  prevent  them. 

4'he  extreme  case  of  extraordinary  crimes,  committed  by  a 
government  against  its  subjects,  is  still  less  capable  of  exact 
definition.  Here,  however,  the  danger  of  erring  is  less  than 
in  the  other  instance,  because  interference  here  is  more  disin- 
terested ; and  the  evil  results  of  a mistake  are  less,  because 
such  cases  are  comparatively  rare. 

§44. 

Having  premised  thus  much  in  regard  to  valid  pretexts  for 
interference,  let  us  look  now  at  the  actual  cases  in  which  in- 

1 If  the  principles  of  intervention  cannot  stand,  tronties  of  iruaranty,  -which  con- 
template such  intervention,  must  he  condemned  also  ; for  they  have  in  view  a re- 
sistance, at  some  future  time,  to  the  endeavors  of  third  parties  to  conquer  or  in 
some  way  control  the  piarantecd  .states  in  question.  An  agreement,  if  it  involve 
an  unlawful  act,  or  the  prevention  of  lawful  acts  on  the  part  of  others,  is  jdainly 
unlawful. 


§44. 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


45 


ternational  law  gives,  or  is  claimed  to  give  to  it  a sanction. 
We  shall  consider  first  the  balance  of  power. 

The  meaning  of  the  balance  of  power  is  this  : that  any  Eu- 
ropean state  may  be  restrained  from  pursuing  plans 
of  acquisition,  or  making  preparations  looking  to-  ence  for  the 

--i-  1-1  -n  1,  balance  of 

wards  future  acquisitions,  which  are  judged  to  be  power, 
hazardous  to  the  independence  and  national  existence  To  prcwnt 
of  its  neighbors.  In  further  explanation  of  the  sys- 
tem  we  may  say,  (1.)  That  it  matters  not  whether  the  actual 
ratio  of  power  between  states  is  in  danger  of  being  disturbed 
by  unjust  or  by  just  means,  provided  only  the  means  are  polit- 
ical, not  economical  and  strictly  internal.  If,  for  instance, 
the  sovereign  of  a powerful  state  should  in  a just  Avay  seat  one 
of  his  family  on  the  throne  of  a neighboring  state,  the  justice 
of  the  transaction  would  not  be  a sufficient  protection  against 
the  interference  of  other  powers.  (2.)  That  acquisitions  out- 
side of  Europe  have  not  hitherto  been  dra^vn  into  this  policy. 
England  lias  by  degrees  become  a predominant  power  in  sev- 
eral quarters  of  the  world  without  provoking  the  interference 
of  the  Continent.  The  reason  is,  that  foreign  acquisitions 
affect  the  political  balance  only  in  an  indirect  way.  (3.)  The 
system  has  been  apjilied  to  power  on  the  land,  and  not  much 
to  power  on  the  sea.  England  has  acquired,  undisturbed,  a 
great  predominance  on  the  sea,  while  the  balance  of  power  has 
been  in  full  exercise.  The  reason  is  obvious.  Power  on  the 
sea  cannot  directly  control  the  political  relations  of  Europe, 
nor  destroy  the  independence  of  states.  (4.)  The  system  has 
not  yet  been  carried  out  beyond  the  borders  of  the  European 
states,  Turkey  included.  The  reason  is,  that  the  transatlantic 
states  have  not  only  come  at  a recent  period  into  the  Euro- 
pean international  system,  but  can,  as  yet,  have  no  apprecia- 
ble influence  in  European  affairs. 

The  balance  of  power  is  a maxim  of  self-preservation,  wliicli 
must  naturally  arise  among  states  which  are  so  contiguous  to 
one  another  as  to  be  liable  to  sudden  invasions.  Suppose  a 
confederacy  of  states  to  have  free  power  of  war  and  peace, 
and  that  the  terms  of  union  guaranteed  to  each  state  an  inde- 


46 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


§44. 


pendent  existence.  In  sncli  a league,  if  one  strong  member 
threatened  the  existence  of  Aveaker  ones,  it  would  be  the  duty 
of  all  to  interfere.  Eurojoe  resembles  such  a confederacy,  and 
the  balance  of  power  is  the  guaranty  of  national  existence 
against  the  designs  of  states  of  the  first  rank.  Let  the  mem- 
bers of  such  a loose  union  be  removed  many  thousand  miles 
from  one  another  by  tracts  of  ocean.  The  self-preserving 
principle  noAV  apprehends  no  danger,  and  a system  of  balances 
is  useless. 

§ 45. . 

The  maintenance  of  a certain  balance  of  power,  as  a fact,  if 
iiistoricaiii-  ^ I’iglit,  characterized  the  politics  of  Greece, 

lustrations,  Pelopounesiau  war  Avas  really  oAving,  says  Thu- 

C3'dides  (I.,  23),  to  the  alaim  Avhich  the  groAvth  of  Athens 
excited  in  the  confederates,  at  the  head  of  AA’hom  AA^as  Sparta. 
When  at  the  end  of  that  Avar  Athens  Avas  subdued,  Thebes 
and  Corinth  desired  its  destruction  ; but  the  Spartans  justly 
regarded  its  existence  as  necessary  in  the  politics  of  Greece. 
Subsequently,  Athens,  wlien  Tliebes  Avas  beginning  to  be  too 
poAverful,  Avent  OA'er  to  the  side  of  Spai’ta,  her  old  enemy. 

In  the  Middle  Ages  a sj^stem  of  equipoise  in  Italy  Avas  put 
into  motion  bj^  the  Popes,  as  soon  as  the  German  emperors 
became  strong  in  the  Peninsula.  The  Pope's  policy  AA'as  to 
have  tAVO  Italian  interests  Avhich  could  be  set  arrainst  one 
another,  at  the  pleasure  of  the  Roman  See,  Avhich  thus  secured 
its  OAvn  safety  and  influence.  But  a nearer  approach  to  the 
modern  balance  of  power  is  seen  in  the  Italian  affairs  conse- 
quent upon  the  claims  of  the  French  kings,  Charles  VIII.  and 
Louis  XII.,  to  Naples  and  Milan,  from  1494  oiiAA^ards.  The 
dangers  from  the  French  invasion  under  Charles,  led  Spain, 
the  Pope,  and  Venice  to  combine  against  him.  Then  in  1508 
the  league  of  Cambray  brought  all  the  poAA^ers  involved  in 
the  Italian  quarrels  into  a common  Avar  against  Venice  for 
her  destruction.  Tlien  in  1510,  the  Pope,  fearing  that  the 
ruin  of  Venice  Avould  leave  Italy  exposed  to  France,  formed 
the  Holy  League  to  drive  this  latter  poAver  out  of  the  Pe- 
ninsula. It  must  be  confessed,  hoAvever,  that  the  league  of 


EIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


47 


§ 45. 


Cambray  against  Venice  was  dictated  by  motives  mncli  more 
unworthy  than  those  of  self-preservation,  and  had  less  to  do 
with  maintaining  the  integrity  of  Italy  than  with  rapacity  and 
revenge. 

Not  long  after  this  the  Austrian  family,  in  two  lines,  held 
Spain  and  the  German  Empire  with  other  important  territorial 
possessions,  and  the  great  resources  of  these  allied  houses 
seemed  to  be  dangerous  to  the  European  system.  France  now 
was  the  weight  in  the  opposite  scale.  The  unaccomplished 
schemes  of  king  Henry  IV.  were  carried  out  by  Richelieu,  when 
he  aided  the  German  Protestants  and  Sweden  against  Austria ; 
and  the  peace  of  Westphalia  in  1618  prevented,  thencefor- 
Avard,  this  state,  holding  as  it  did  the  office  of  Emperor  in 
its  hands,  from  becoming  formidable  either  to  Europe  or  to 
Germany. 

It  Avas  now  the  turn  of  France  to  feel  the  force  of  the 
balance  of  poAver.  The  ambition  of  Louis  XIV.  AA'as  thought 
to  endanger  the  existence  of  other  European  states',  and  a 
universal  monarchy  seemed  to  be  at  hand.  The  coalitions  of 
nearly  all  Europe,  Avhich  resisted  and  finally  humbled  the 
Grand"  Monarch,  are  among  the  most  righteous  examples  of 
measures  for  preserving  the  balance  of  poAver  Avhich  history 
records.  Some  of  the  means,  hoAvever,  Avhich  Avere  adopted 
for  the  preservation  of  the  balance  at  this  time,  Avere  of  doubt- 
ful justice  and  policy.  It  was  right  to  set  bounds  to  the 
ambition  of  Louis  XIV. ; it  was  right,  when  his  intrigues  pro- 
cured the  nomination  of  his  grandson  to  a throne  Avhich  had 
been  solemnly  renounced  for  his  postei'ity,  to  endeaAmr  to 
prevent,  by  force  of  arms,  this  accumulation  of  poAver  in  the 
Bourbon  line ; but  what  justice  was  there  in  the  two  partition 
treaties  of  1698  and  1700,  Avhich  disposed  of  territories  apper- 
taining to  the  Spanish  CroAvn  AAnthout  asking  leav^e  of  the 
king  or  nation ; and  was  not  this  high-handed  measure  a failure 
in  policy,  as  calculated  to  offend  the  pride  of  Spain?  Since 
the  time  when  the  balance  of  poAA^er  played  such  a part  in  the 
days  of  Louis  and  William  of  Orange,  it  has  been  repeatedly 
acted  on,  and  may  be  said  to  be  an  established  part  of  the 


48 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


§ 45. 


international  law  of  Europe.  The  most  memorable  instances 
of  its  application  in  recent  times,  liave  been  the  interposition 
of  the  four  powers  in  1840,  which  forced  Mehemet  Ali  to  re- 
nounce the  provinces  of  the  Turkish  empire,  of  which  he  held  * 
possession,  and  that  of  France,  England  and  other  powers,  in 
1854,  to  preserve  the  integrity  of  the  same  empire  against  the 
designs  of  Russia. 


46. 


We  have  already  seen  that  where  one  nation’s  aid  is  invoked 
2.  interfer-  ^7  government  of  another  for  the  purpose  of  put- 
Teiit  revoiu  dowi  a revolt,  such  assistance  is  not  opj)osed  by 

tions.  nations.  Should  it  be  given  in  the  spirit 

of  hostility  to  free  institutions,  the  motive  lies  beyond  the  or- 
dinary sphere  of  this  science.  But  a part  of  the  European 
powers  have  attempted  to  establish  a right  of  interference  to 
put  donm  revolutionary  principles  in  that  continent,  whether 
their  aid  be  called  for  or  not.  This  principle  has  been  avowed, 
if  we  mistake  not,  only  since  the  French  revolution ; for  only 
since  then  has  absolutism  become  conscious  of  its  dangers,  and 
of  the  hatred  felt  towards  it  by  multitudes  of  persons  scattered 
through  the  nations.  The  plea  is,  as  in  the  case  of  the  balance 
of  power,  one  of  self-preservation.  The  stability  of  all  govern- 
ments, it  is  alleged,  and  of  all  institutions  sustained  by  govern- 
ments, is  threatened  by  the  propagandists  of  liberty ; and  even 
the  dread  of  revolution  so  greatly  paralyzes  the  energies  of 
states  that  everything  must  be  done  to  make  it  as  remote  as 
possible.  It  is  admitted  that  no  interference  undertaken  for 
the  direct  and  sole  purpose  of  spreading  absolute  principles,  or 
absolutism  itself,  or  even  for  that  of  crushing  free  principles, 
or  of  overturning  settled  governments  or  constitutions  set  up 
in  an  illegitimate  way,  is  to  be  justified ; but  it  is  claimed  that 
revolutions  in  modern  times  have  been  sources  of  incredible 
evils,  and  that  the  so-called  right  of  a people  to  alter  its 
government  by  force,  is  calculated  to  bring  upon  Europe  eter- 
nal commotion  and  insecurity. 


§47. 


EIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


49 


§47. 

While  the  French  revolution  was  in  progress  * some  of  the 
leaclinof  powers  of  Europe  had  shomr  a disposition  to 
interfere  in  the  affairs  of  France,  partly  on  the  interference 

for  or 

OTound  that  former  treaties  had  been  violated,  and  against  rcv- 

® n T c •!  c T-I  olutions. 

partly  because  the  king  and  royal  family  of  h ranee 
were  restrained  in  their  liberty  and  treated  with  dishonor.  A 
circular  of  the  emperor  of  Germany,  of  July  6,  1791,  invited 
the  principal  powers  of  Europe  to  declare  to  the  French  nation 
among  other  things,  that  the  sovereigns  “would  unite  to 
avenge  any  further  offenses  against  the  liberty,  the  honor  and 
safety  of  the  king  and  his  family ; that  they  would  consider  as 
constitutional  laws  only  those  to  Avhich  the  king  should  have 
given  his  free  assent ; and  that  they  Avould  employ  every  means 
of  terminating  the  scandal  of  a usurpation  founded  on  rebel- 
lion, and  of  Avhich  the  example  ivas  dangerous  to  every  govern- 
ment.” On  the  27th  of  August,  in  the  same  year,  the  same 
sovereigns,  Avitli  the  king  of  Prussia,  signed  a declaration  to  the 
same  effect,  in  which  they  invited  the  monarchs  of  Europe  to 
unite  Avith  them  in  using  “ the  most  efficacious  means  to  put 
the  king  of  France  in  a state  to  enable  him  Avith  perfect  free- 
dom to  lay  the  foundation  of  a monarchical  goA'ernment,  equally 
consistent  Avith  the  rights  of  sovereigns  and  the  welfare  of 
the  French  nation ; in  which  case  they  Avere  resoh^ed  to  act 
promptly  and  Avith  necessary  forces  to  obtain  the  proposed 
common  object.  In  the  mean  time  they  would  give  the  neces- 
sary orders  to  hold  their  troops  in  readiness  to  take  the  field.”  ^ 
Louis  having  accepted  the  iieAV  constitution  on  the  13th  of 
September,  1791,  and  announced  to  foreign  poAA^ers  his  inten- 
tion of  supporting  it,  there  AA^as  no  pretext  of  a restraint  upon 
the  king’s  liberty  for  an  armed  mteiwention  in  the  affairs  of 
France.  But  unsettled  questions  in  dispute  continued,  and  at 

1 Comp-  Wheaton’s  Ilistorjj,  p.  347  et  seq.,  and  his  Elements,  ii.,  1,  102-109,  which 
I have  freeiy  used. 

2 Wheaton’s  History,  p.  346  seq.  The  passages  in  quotations  through  this 
paragraph  are  borrowed  from  that  work. 


50 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


47. 


length,  on  the  7th  of  April,  1792,  the  Austrian  ultimatnin  de- 
manded, together  with  the  restoration  of  the  Venaissin  to  the 
Pope,  and  of  their  possessions  and  privileges  in  Alsace  to  the 
princes  of  the  Empire,  the  reestablishment  of  the  French 
monarchy  on  the  basis  of  the  French  king’s  declaration  of  the 
23d  of  June,  1789.  This  necessarily  led  to  the  decree  in  the 
national  assembly  that  France  was  in  a state  of  Avar  Avith  Aus- 
tria. The  king  of  Prussia,  on  the  26th  of  June  of  the  same 
year,  1792,  announced  to  the  Avorld  the  reasons  Avhich  induced 
him,  in  conjunction  Avith  Austria,  to  take  up  arms  against 
France.  Among  them  Ave  mention  “ the  propagation  of  prin- 
ciples subA'ersive  of  social  order,  Avhich  had  throAvn  France 
into  a state  of  confusion ; ” and  “ the  encouragement  and 
even  official  publication  of  Aviltings  the  most  offensive  against 
the  sacred  persons  and  laAvful  authority  of  sovereigns.  To 
suppress  anarchy  in  France  ; to  reestablish  for  this  purpose  a 
laAvful  poAver  on  the  essential  basis  of  a monarchical  form  ; and 
by  these  means  to  secure  other  governments  against  the  crim- 
inal and  incendiary  efforts  of  madmen,  — such  the  king  de- 
clared to  be  the  great  objects  of  himself  and  his  ally.” 

The  declaration  of  Austria  dreAV  forth  at  once  a counter 
statement  from  the  national  assembly  di’aAvn  up  by  Condorcet, 
AAdiich,  among  other  things,  claimed  for  every  nation  the  ex- 
clusive right  of  making  and  changing  its  laAvs  ; denied  that 
France  had  threatened  the  general  tranquillity,  seeing  she  had 
renounced  all  designs  of  conquest ; declared  that  the  avoAval 
of  the  doctrine  of  the  sovereignty  of  the  people,  Avhich  the 
nation  had  made,  could  not  be  regarded  as  disturbing  the 
peace  of  other  states ; and  rebutted  the  charge  that  French- 
men had  excited  other  nations  to  insurrection  ; Avhilst,  on  the 
other  hand,  emigrants  fi’om  France  had  receiA^ed  aid  and  en- 
couragement from  those  Avho  brought  these  complaints,  and 
attempts  had  been  made  to  excite  civil  Avar  in  France.  Such 
complaints  Avere  unreasonable  “ unless  it  Avere  laAvful  to  extend 
servitude  and  unlawful  to  propagate  liberty ; unless  every- 
thing be  permitted  against  the  people,  and  kings  alone  have 
rights.” 

O 


§ 47.  RIGHTS  OF  STATES  AS  SOVEREIGNTIES.  51 

England  could  not,  in  consistency  "vvitli  the  historical  devel- 
opment of  its  OAvn  institutions  by  means  of  a revolution,  adopt 
the  principles  on  Avhich  the  continental  poAvers  declared  Avar 
against  Erj^nce.  An  attitude,  hoAveAmr,  far  from  friendly,  Avas 
obsei’A^ed  toAvards  that  country,  and,  among  the  causes  of  com- 
plaint, one  A\ms  the  encouragement  given  to  reAmlt  in  other 
countries,  not  only  by  emissaries  sent  to  England,  but  by  a de- 
cree of  the  Convention,  Avhich  Avas  said  to  ex^iress  the  design 
of  extending  French  princij)les  and  of  promoting  reAmlutions 
in  all  countries,  even  those  Avbich  Avere  neutral.  At  length, 
on  the  death  of  Louis,  in  the  beginning  of  1793,  the  French 
ambassador  Avas  ordered  to  leave  the  kingdom.  A state  of 
Avar  ensued,  during  Avhich  hlr.  Pitt  declared  that  there  had 
been  no  intention,  if  the  country  had  not  been  attacked,  to  in- 
terfere in  the  internal  affairs  of  France.  But,  no  doubt,  the 
atrocities  in  the  summer  of  1793,  and  the  closing  tragedy  of 
the  king’s  execution,  Avere  motives,  if  not  pretexts  of  hostility. 
Nor  can  there  be  much  doubt  that  the  interference  of  the  Eu- 
ropean poAvers,  aboA'e  spoken  of,  produced,  or  at  least  intensi- 
fied, those  atrocities,  by  arousing  the  national  feeling  of  the 
French,  by  exciting  distrust  of  the  king’s  good  faith,  and  by 
making  it  apparent  that  no  terms  could  be  kept  Avith  the 
soA’ereigns. 

The  reAmlution  had  its  course.  The  interference  Avas 
avenged,  and  the  parties  to  it  Avere  humbled.  But 
at  length  France,  Avhich  destroyed  the  independence 
of  half  of  Europe,  lost  its  oAvn,  the  empire  fell,  and 
the  old  Bourbon  dynasty  Avas  restored.  During  the  occu- 
pation of  Paris,  consequent  on  the  battle  of  Waterloo,  the 
three  rulers  of  Russia,  Austria,  and  Prussia,  joined  afteiuvards 
by  the  French  king,  formed  the  Holy  Alliance,  Avhich  has 
been  regarded  as  a league  of  absolutism  against  the  rights  and 
the  freedom  of  the  nations.  This  famous  leagiTe,  hoAvever,  at 
its  inception,  appears  to  have  had  no  definite  object  in  vieAV. 
It  Avas  a measure  into  Avhich  the  other  sovereigns  entered,  in 
order  to  gratify  the  emperor  Alexander,  Avhose  romantic  mind, 
then  under  the  influence  of  Madame  Krudener,  contemplated 


52 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


§47. 


a golden  age,  in  which  the  intercourse  of  nations  should  be 
controlled  by  Christian  principles.  The  parties  to  the  Holy 
Alliance  bound  themselves,  appealing  to  the  Holy  Trinity,  to 
exercise  their  poAver  according  to  the  principles , of  religion, 
justice,  and  humanity  ; to  afford  one  another  on  all  occasions 
aid  and  help  ; to  treat  their  subjects  and  soldiers  Avith  paternal 
feeling,  and  to  I’egard  their  people  as  members  of  a great 
Christian  family,  Avhose  guidance  was  entrusted  to  them  by 
God.i 

The  congress  of  Aix-la-Chapelle,  at  Avhich  the  five  great 
Congress  of  poAvei's  Avere  represented,  and  AA'hich  removed  the 
pcHcrsept  <H’i7ry  of  occupation  from  the  French  fortresses,  ef- 
29, 1S18.  fected  an  alliance  almost  as  A'ague  as  the  Holy  Alli- 
ance, Avhich,  according  to  some  of  the  parties  to  it,  Avas  in- 
tended to  exercise  a supeiwisory  poAA^er  oA'er  European  affairs, 
interfering  to  prevent  all  dangerous  revolutions,  especially 
Avhen  they  should  proceed  from  popular  movements.  They 
declared,  hoAA^eA'er,  their  intention  to  obseiwe  scrupulously  tlie 
laAv  of  nations.  “ Tlie  soA^ereigns  haA^e  regarded,”  say  they, 
“ as  the  fundamental  basis,  their  invariable  resolution  never  to 
depart  either  among  themseh'es  or  in  their  relations  Avith  other 
states,  from  the  strictest  observance  of  the  laAv  of  nations,  — 
principles,  Avhich,  in  their  application  to  a state  of  permanent 
peace,  are  alone  able  to  give  an  effectual  guaranty  to  the  in- 
dependence of  each  government,  and  to  the  stability  of  their 
general  association.” 

The  unmeaning  nature  of  such  declarations  Avas  shoAAui  not 


aftei’Avards  by  acts  of  interference,  undertaken 
Avithout  the  consent  and  against  the  Avill  of  one  lead- 


/.  f lono* 

Congress  of  •*^**c? 

Troppau  - 
La>’bach, 

1820, ‘fnd  big  European  poAver,  and  certainly  not  accordant 

onwards. 


ing  of  discontent  AAutli 


Avith  a rio'orous  vieAV  of  the  laAV  of  nations.  A feel- 

O 

the  anti-liberal  movements  of  most  of 
the  continental  poAvers  had  been  groAving  in  intensity  in  many 
parts  of  Europe,  AA’hen,  in  1820  and  1821,  reA’olutions  broke 
out  in  rapid  succession  in  Spain,  Najiles,  and  Sardinia,  and  the 


1 The  whole  compact  is  given  hy  Mr.  Manning  in  an  English  version,  pp.  82-84, 
of  ed.  1. 


EIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


53 


i §47. 

constitution  of  Cadiz,  of  the  year  1812,  was  proclaimed  in  all 
the  three  kingdoms.  The  alarm  excited  by  the  revolutionary 
spirit  was  the  occasion  of  convoking  a congress  at  Troppau 
in  Silesia,  in  October,  1820,  which  was  removed  near  the  end 
of  the  same  year  to  Laybach  in  Styria,  and  at  which  not  only 
the  five  great  powers  were  represented  by  their  sovereigns  or 
by  ambassadors,  but  the  king  of  Naples  and  deputations  from 
small  poAvers  appeared.  Against  the  proposed  intervention  in 
the  affairs  of  Italy  the  British  government  protested  in  strong 
terms,  although  the  existing  ministry  Avere  not  averse  to  the 
suppression  of  revolutionary  liberalism  ; Avhile,  on  the  other 
hand,  the  French  government  approved  openly  of  the  inter- 
vention, in  order  to  gratify  the  ultra-royalist  party  at  home, 
but  secretly  dreaded  the  Austrian  influence  Avhich  such  a meas- 
ure AA'Ould  increase.  Austria,  thus  supported,  sent  an  army 
into  the  Peninsula,  overthreAV  the  revolution  almost  Avithout  a 
bloAV  in  the  spring  of  1821,  and  brought  back  the  old  abso- 
lutism in  all  its  rigor. 

The  circular  despatch  of  the  sovereigns  of  Austria,  Russia, 
and  Prussia,  justified  these  measures  by  alleging  “ that  there 
existed  a vast  conspiracy  against  all  establislied  poAver,  and 
against  all  the  rights  consecrated  by  that  social  order  under 
whicli  Europe  had  enjoyed  so  many  centuries  of  glory  and 
happiness  ; that  they  regarded  as  disavoAved  by  the  principles 
which  constitute  the  public  right  of  Europe  all  pretended  re- 
form operated  by  revolt  and  open  hostility ; ” that  they  op- 
posed a “ fanaticism  for  innovation,  Avhich  Avould  spread  the 
horror  of  universal  anai’chy  oA^er  the  civilized  Avorld ; that 
they  AA’ere  far  from  Avishing  to  prolong  this  interference  be- 
yond the  limits  of  strict  necessity,  and  Avoidd  ever  prescribe  to 
themselves  the  preservation  of  the  independence  and  of  the 
rights  of  each  state.”  On  the  other  hand  the  British  govern- 
ment, Avhile  it  acknoAvledged  the  right  to  interfere,  Avhere 
the  “ immediate  security  or  essential  interests  ” of  one  state 
are  seriously  endangered  by  another,  denied  that  “ this  right 
could  receive  a general  and  indiscriminate  application  to  all 
revolutionary  governments.”  Such  interference  was  an  excep- 


54 


EIGHTS  or  STATES  AS  SOVEREIGNTIES. 


§47. 


tion,  and  “ could  not,  without  the  utmost  danger,  be  incorpo- 
rated into  the  ordinary  diplomacy  of  states,  or  into  the  insti- 
tutes of  the  law  of  nations.”  ^ 

Soon  after  this,  in  the  middle  of  1821,  a royalist  insurrection 
occurred  in  northern  Spain,  to  which  France  so  far 

Congress  of  i i i n i • 

VCTona,  Oct.  extended  aid  as  to  allow  the  insurgents  to  gather 
along  the  borders,  to  retreat  in  case  of  need  across  the 
line,  and  to  make  open  preparation  of  arms  and  money  on 
French  soil.  A congress  had  been  arranged  to  meet  at  Verona 
when  that  of  Laybach  broke  up.  The  principal  measure  here 
agitated  was  armed  interference  in  the  affairs  of  Spain,  which, 
if  undertaken,  would  naturally  be  the  work  of  France.  The 
British  envoy,  the  Duke  of  Wellington,  not  only  declared  the 
refusal  of  his  government  to  participate  in  any  such  proceed- 
ing, but  also  that  England  would  not  even  attempt  to  persuade 
Spain  to  conform  to  the  views  of  the  Congress.  The  French 
envoys,  Montmorency  and  Chateaubriand,  against  express  in- 
structions of  their  court,  urged  forward  the  intervention,  which 
was  supported  by  the  other  powers,  and  energetically  by  Russia, 
Avhich  power  at  Laybach  had  hung  back  from  decisive  move- 
ments by  force  of  arms.  The  envoys  acted  herein  in  the  in- 
terest of  the  ultra-royalist  party,  which  was  thus  able  to  carry 
its  measures  through.  For  a French  army  occupied  Spain, 
penetrated  as  far  as  Cadiz,  overthrew  the  constitution  of  Cadiz 
to  which  the  king  had  given  his  assent,  and  left  him  “free,” 
but  the  country  enslaved.  No  stretch  of  interference  had  gone 
so  far  as  this,  for  Spain  would  have  had  a settled  constitutional 
government,  and  probably  settled  peace,  unless  the  agitators 
had  looked  for  aid  to  foreign  power. 

§ 48. 

The  proceedings  at  Verona  indirectly  gave  rise  to  what  has 
been  called  the  jNIonroe  doctrine,^  which  met  the  reigning 

1 Circular  despatch  of  the  sovereigns,  etc.,  Layb.ich,  May,  1821,  and  Lord  Cas- 
tlereagh’s  circular  despatcli  of  January  19,  1821. 

2 Compare  especially  the  North  American  Review  for  April,  1856,  and  Mr.  Cal- 
houn’s speech  in  the  Senate  on  the  proposed  occupation  of  Yucatan,  May  15 
1848. 


t S48.  RIGHTS  OF  STATES  AS  SOVEREIGNTIES.  65 

! 

I principle  of  interference  in  Europe  by  a similar  principle  in 

' the  opposite  direction.  The  history  of  this  doctrine  3 jionroe 

is,  in  brief,  the  follo'svmg.  At  Verona  the  subject 
was  agitated  of  attempting,  in  conformity  with  the  kno^vn 
wishes  of  the  absolutists  in  Spain,  to  bring  back  the  Spanish 
colonies  into  subjection  to  the  mother  country.  This  fact  hav- 
ing been  communicated  to  our  government  by  that  of  Great 
’ Britain  in  1823,  and  the  importance  of  some  public  protest  on 
our  part  being  insisted  upon.  President  Monroe,  in  his  annual 
message,  used  the  following  language : “ That  Ave  should  con- 
sider any  attempt  on  the  part  [of  the  allied  powers,]  A,o  extend 
their  system  to  any  part  of  this  hemisphere  as  dangerous  to  our 
peace  and  safety and  again,  “ that  Ave  could  not  vieAV  any  in- 
terposition for  the  purpose  of  oppressing  [governments  on  this 
side  of  the  Atlantic  AAdiose  independence  Ave  had  acknoAvledged] 
or  controlling  in  any  manner  their  destinies  by  any  European 
poAver,  in  any  other  light  than  as  a manifestation  of  an  un- 
friendly disposition  tOAvards  the  United  States.”  Soon  after- 
wards a resolution  Avas  moved  in  Congress,  embodying  the 
same  principle,  but  Avas  neAmr  called  up.  But  the  mere  dec- 
laration of  the  President,  meeting  Avith  the  full  sympathy  of 
England,  put  an  end  to  the  designs  to  Avhich  the  message 
refers. 

In  another  place  of  the  same  message,  while  alluding  to  the 
question  of  boundary  on  the  Pacific  betAveen  the  United  States 
and  Russia,  the  President  speaks  thus : “ The  occasion  has 
been  judged  proper  for  asserting  as  a principle,  in  which  the 
rights  and  interests  of  the  United  States  are  involved,  that  the 
American  continents,  by  the  free  and  independent  condition 
Avhich  they  have  assumed  and  maintain,  are  henceforth  not  to 
be  considered  as  subjects  for  future  colonization  by  any  Euro- 
pean power.”  Was  it  intended  by  this  to  preclude  the  South 
American  republics,  Avithout  their  Avill,  from  receiving  such 
colonies  Avithin  their  borders  — of  surreirdering  their  territory 
for  that  purpose  ? Such  a thing,  probably,  Avas  not  thought  of. 
jNIr.  Adams,  Avhen  President  in  1825,  thus  refers  to  Mr.  Mon- 
roe’s principle,  while  speaking  in  a special  message  of  a con- 


56 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


§48. 


gress  at  Panama.  “An  agreement  between  all  the  parties 
represented  at  the  meeting,  that  each  will  guard  hy  its  oivn 
means  against  the  establishment  of  any  future  European  colony 
within  its  borders,  may  be  found  desirable.  This  was  more  than 
two  years  since  announced  by  my  predecessor  to  the  world  as 
a principle  resulting  from  the  emancipation  of  both  the  Ameri- 
can continents.”  Mr.  Adams,  when  Secretary  of  State  under 
Mr.  Monroe,  originated  the  “ principle,”  and  must  have  known 
what  he  meant.  But  the  principle,  even  in  this  tame  form, 
was  repudiated  by  the  House  of  Representatives,  in  a resolu- 
tion declaring  that  the  United  States  “ought  not  to  become 
parties  ” with  any  of  the  South  American  republics  “ to  any 
joint  declaration,  for  the  purpose  of  preventing  the  interfer- 
ence of  any  of  the  European  powers  with  their  independence 
or  form  of  government ; or  to  any  compact  for  the  purpose  of 
preventing  colonization  upon  the  continent  of  America.” 

On  the  whole  then,  (1)  this  policy  is  not  a national  one. 
The  House  of  Representatives,  indeed,  had  no  right  to  settle 
questions  of  policy  or  of  international  law.  But  the  Cabinet 
has  as  little.  The  opinion  of  one  part  of  the  government  neu- 
tralized that  of  another.  (2)  The  principle  first  mentioned, 
of  resisting  attempts  to  overthrow  the  libeidies  of  the  Spanish 
republics,  was  one  of  most  righteous  self-defense,  and  of  vital 
importance.  And  such  it  Avill  probably  ahvays  be  regarded, 
whenever  a similar  juncture  shall  arise.  But  the  other  prin- 
ciple of  prohibiting  European  colonization  was  vague,  and  if 
intended  to  prevent  Russia  from  stretching  her  borders  on  the 
Pacific  further  to  the  south,  Avent  far  beyond  any  limit  of  inter- 
ference that  has  hitherto  been  set  up.  What  right  had  the 
United  States  to  control  Russia  in  gaining  territory  on  the 
Pacific,  or  planting  colonies  there,  Avhen  they  themselves  had 
neither  territory  nor  colony  to  be  endangered  Avithin  thou- 
sands of  miles. 

The  Monroe  doctiune  came  up  again  in  another  shape  in 
1848.  President  Polk  having  announced  that  the  government 
of  Yucatan  had  offered  the  dominion  over  that  country  to 
Great  Britain,  Spain,  and  the  United  States,  urges  on  Con- 


§4S. 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


57 


gi-ess  such  measures  as  may  prevent  it  from  becoming-  a colony 
and  a part  of  the  dominions  of  any  European  power,  which 
would  be,  he  says,  in  contravention  of  the  declaration  of  Mi’, 
^lonroe,  and  which  must  by  no  means  be  allowed.  i\lr.  Cal- 
houn, in  his  speech  on  this  subject,  shows  that  the  case  is  very 
different  from  that  contemplated  by  Mr.  jNIonroe,  that  the 
declarations  of  the  latter  could  not  be  reg-arded  as  expressing 
the  settled  policy  of  this  country,  and  tliat  they  were  mere 
declarations  without  threat  of  resistance.  The  “ colonization  ” 
contemplated  by  the  Monroe  doctrine  could  not  ap[>ly  to  Yuca- 
tan, and  the  possibility  of  England  (which  was  especially 
intended)  acquiring  power  there  was  remote.  The  principle, 
he  adds,  “ which  lies  at  tlie  bottom  of  the  [President's]  recom- 
mendation is,  that  when  any  power  on  this  continent  becomes 
involved  in  internal  warfare,  and  the  w-eaker  side  chooses  to 
make  application  to  us  for  support,  we  are  bound  to  g-ive  them 
support,  for  fear  the  offer  of  the  sovereignty  of  the  country  may 
be  made  to  some  other  power  and  accepted.  It  goes  infinitely 
and  dangerously  beyond  Mr.  Monroe’s  declaration.  It  puts  it 
in  the  power  of  other  countries  on  this  continent  to  make  us  a 
party  to  all  their  Avars.” 

To  lay  down  the  principle  that  the  acquisition  of  territory 
on  this  continent,  by  any  European  power,  cannot  be  allowed 
by  the  United  States,  Avould  go  far  beyond  any  measures  dic- 
tated by  the  system  of  the  balance  of  poAA-er,  for  the  rule  of 
self-preseiwation  is  not  applicable  in  our  case  : Ave  fear  no 
neighbors.  To  lay  down  the  principle  that  no  political  systems 
unlike  our  OAvn,  no  change  from  republican  forms  to  those  of 
monarchy,  can  be  endured  in  the  Americas,  would  be  a step  in 
advance  of  the  congresses  at  Laybach  and  Verona,  for  they  ap- 
prehend destruction  to  their  political  fabrics,  and  Ave  do  not. 
But  to  resist  attempts  of  European  poAA^ers  to  alter  the  consti- 
tutions of  states  on  this  side  of  the  Avater,  is  a wise  and  just 
opposition  to  interference.  Anything  beyond  this  justifies  the 
system  Avhich  absolute  governments  have  initiated  for  the  sup- 
pression of  revolutions  by  main  force. 


58 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


§ 49 


§ 49. 

The  attempts  to  introduce  into  the  European  laAV  of  nations 
Re.suUsof  ^ right  of  interference  in  the  internal  affairs  of  other 
wtTp’Lnw  states,  have  come  to  the  following  results:  (1.) 
cnceinuie  England  has  constantly  protested  against  such  a 
affairTof  principle,  and  has  been  scrupulous  in  placing  her  in- 
state.s.  terventions  on  other  grounds.  When,  in  1826,  the 
government  of  that  country,  in  accordance  with  ancient  trea- 
ties and  on  application,  sent  troops  to  Portugal  to  sustain  the 
regency  there  against  the  pretensions  of  Don  Miguel,  it  was 
declared  that  nothing  would  be  done  to  enforce  the  establish- 
ment of  the  constitution,  but  that  others  would  be  resisted  in 
their  attempts  to  overturn  it.  At  that  time  it  was  said  by 
Mr.  Canning,  in  the  House  of  Commons,  that  France  had  given 
to  Great  Britain  cause  of  Avar  by  her  violation,  in  1823,  of  the 
independence  of  Spain.  (2.)  The  principle  has  been  applied 
only  in  the  case  of  Aveaker  nations  ; Avhile  the  tAvo  French  rev- 
olutions of  1830  and  1848,  Avere  alloAved  to  take  their  course, 
and  the  revolutionary  governments  Avere  soon  acknoAvledged. 
(3.)  France  cannot,  Avithout  gross  inconsistency,  accede  to  this 
principle.  (4.)  The  principle,  carried  out,  must  bring  Chris- 
tian states  into  conflict ; for  the  right  of  interfering  in  favor 
of  liberty  can  be  urged  even  on  the  ground  of  self-preservation, 
as  Avell  as  that  of  interfering  to  put  doAvn  popular  moA'ements, 
since  free  and  despotical  institutions  must  be  dangerous  to  one 
another’s  existence.  If  the  powers  of  Europe  had  been  equally 
divided  betAveen  constitutionalism  and  despotism,  such  a prin- 
ciple Avould  not  have  been  avoAved,  for  it  might  Avork  both 
Avays.  Its  avoAval,  therefore,  can  be  ascribed  only  to  the  con- 
sciousness of  superior  might.  (5.)  The  interference,  as  it  can- 
not prevent  the  moral  and  intellectual  causes  of  revolution,  by 
delay  only  embitters  and  fanaticizes  its  spirit.  It  leaves  the 
payment  of  a debt  at  compound  interest  to  posterity. 


EIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


59 


§ 51. 


§50. 

The  interference  of  the  five  great  powers  in  the  affairs  of 
the  Netherlands  has  some  peculiar  characteristics  of 

, 4.  Intcrfer* 

its  o-wn.  First,  the  kingdom  had  been  constituted  at  ence  in  the 
tlie  Congress  of  Vienna,  out  of  Holland,  Belgium, 
and  certain  neighboring  duchies,  as  a kind  of  barrier 
between  France  and  Germany.  Fifteen  years  afterwards,  on 
the  outbreak  of  the  July  revolution  in  France,  Belgium  sep^ 
arated  violently  from  the  rest  of  the  Netherlands,  and  it  be- 
came evident  that  two  such  heterogeneous  parts  could  not  be 
welded  together.  The  king  of  the  Netherlands  invoked  the 
mediation  of  the  five  powers,  who  first  procured  an  armistice 
between  the  parties,  then  in  the  character  of  unauthorized  ar- 
bitrators laid  doivn  the  terms  of  separation,  and  finally  forced 
a compliance.  The  views  that  governed  in  the  long  negotia- 
tions, which  finally  lent  the  sanction  of  Europe  to  this  divorce, 
are  given  at  length  by  Dr.  Wheaton  in  his  “ History  of  the  Law 
of  Nations,”  and  are  a most  instructive  chapter.  Belgium  ac- 
quired its  independence  with  the  rights  and  obligations  of  per- 
petual neutrality ; a French  prince  was  prevented  from  occu- 
pying its  throne ; the  Scheldt,  with  other  streams  and  canals 
common  to  Belgium  and  Holland,  was  to  remain  free ; Ant- 
werp, as  by  the  terms  of  the  peace  of  Paris  in  1814,  was  to 
be  a port  without  fortifications,  and  the  territory  of  the  new 
kingdom  Avas  confined  within  narrow  bounds,  because  it  was 
born  in  a revolution.  Thus  there  was  “ a compromise  in  this 
case  between  the  two  principles  which  had  so  long  menaced, 
by  their  apprehended  collision,  the  established  order  and  the 
general  peace  of  Europe.”  Doubtless,  if  France  itself  had  not 
just  before  asserted  the  right  of  revolution,  the  interference 
here  Avould  have  been  directed  to  the  point  of  healing  the 
schism  in  the  Netherlands  by  main  force. 

§ 51. 

Interference  on  the  score  of  humanity  or  of  religion,  can  be 
justified  only  by  the  extreme  circumstances  of  the  case.  In 


60 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


§ 51. 

tlie  age  Avliicli  succeeded  the  Iveformation,  both  self-preserva- 
tion and  religions  sympathies  induced  the  Pi'otes 
enccon  tiie  taiit  statcs  to  aid  0116  another  against  the  superior 
lision  and  of  might  of  the  Catholic,  and  to  aid  the  votaries  of 
humanity,  witliiii  Catliolic  couiitries,  in  order  to 

secure  for  them  freedom  of  worship.  Elizabeth  of  England 
sent  aid  to  the  revolted  Hollanders  on  religious  grounds,  and 
Cromwell's  threats  slackened  the  persecution  of  the  Waldenses 
by  the  Duke  of  Savoy.  In  modern  times,  the  interference  of 
Great  Britain,  France,  and  Russia,  on  behalf  of  the  Greeks, 
in  1827,  was  avowedly  dictated  by  motives  of  humanity.  The 
Greeks,  after  a bloody  contest,  had  so  far  achieved  their  inde- 
pendence, that  the  Sultan  could  not  reduce  them.  Accord- 
ingly his  vassal,  Mehemed  Ali,  of  Egypt,  was  allured  to  send 
an  army  of  subjugation  into  the  iMorea,  and  the  atrocious 
scenes  of  fanatical  war  were  renewed.  The  Greeks  applied 
to  France  and  England  for  help  or  mediation.  At  length,  in 
consequence  of  the  battle  of  Navarino,  October  20,  1827,  and 
the  French  occupation  of  the  IMorea,  the  Peninsula  was  evac- 
uated by  Mohammedan  troops,  and  finally  the  independence 
of  Greece  was  acknoAvledged.  Dr.  M'heaton  says  of  these 
events  ^ that  the  Christian  powers  were  eminently  justified  in 
their  interference  “ to  rescue  a whole  nation  not  merely  from 
religions  persecution,  but  from  the  cruel  alternative  of  being 
transported  from  their  native  land  into  Egjqotian  bondage,  or 
exterminated  by  their  merciless  oppressors.  The  rights  of 
human  nature  — wantonly  outraged  bj'^  this  cruel  warfare  — 
were  but  tardily  and  imperfectly  vindicated  by  this  measure, 
but  its  principle  was  fully  justified  by  the  great  paramount 
law  of  self-preservation.  ‘ Whatever  a nation  may  lawfully 
defend  for  itself,  it  may  defend  for  another  if  called  on  to  in- 
terpose.’ The  interference  of  the  Christian  powers  to  put  an 
end  to  this  bloody  contest,  might  therefore  have  been  safely 
rested  on  this  gx’ound  alone,  without  appealing  to  the  interests 
of  commerce  and  of  the  repose  of  Europe,  which,  as  well  as 
'the  interests  of  humanity,  are  alluded  to  in  the  treaty  (for 
1 Elements,  Fait  II.,  chapter  i.,  § 10. 


RIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


61 


§ 52. 


tlie  pacification  of  Greece,  July  6,  1827),  as  the  determining 
motives  of  the  high  contracting  parties.” 


EQUALITY  OF  SOVEREIGN  STATES. 

§ 52. 

We  have  already  explained  equality  to  denote  equality  of 
rights.  All  sovereign  states  stand  on  the  same  level  Equality  of 
in  this  respect,  — the  old  and  the  new,  large  and 
small,  monarchies  and  republics,  — for  the  conception  of  a 
state  to  be  applied  to  all  is  the  same,  and  their  sovereignty 
is  the  same.  This,  however,  is  not  incompatible  with  special 
privileges  of  a commercial  nature  granted  to  one  nation  before 
another,  or  to  superior  rank  in  the  ceremonial  of  courts. 

Formerly  the  most  punctilious  rules  of  etiquette  Avere  ob- 
served at  most  of  the  courts  of  Europe.  Gustavus  of  na- 
Adolphus,  Avho  said  that  all  crowned  heads  Avere 
equal,  Avas  one  of  the  first  to  despise  pretensions  of  superiority. 
Rules  are  necessary  to  prevent  ambassadors  and  their  Avives 
from  contending  for  precedence,  or  feeling  that  an  insult  has 
been  offered  to  them  or  their  country.  But  Avith  all  the  nicety 
of  court  etiquette,  such  quarrels  have  frequently  taken  place. 
Among  the  most  noted  of  these  disputes,  was  one  of  long  con- 
tinuance betAveen  the  ambassadors  of  France  and  Spain.^  The 
place  of  France,  until  the  sixteenth  century,  according  to  the 
ceremonial  of  the  Romish  See,  had  been  next  to  that  of  the 
German  emperor,  but,  as  Charles  V.  was  both  emperor  and 
king  of  Spain,  his  successor  on  the  Spanish  throne  claimed 
precedence  of  other  kings,  and  thus  brought  on  a collision. 
At  the  Council  of  Trent  the  dispute  rose  to  such  a point  that 
the  French  declared  that  they  Avould  renounce  obedience  to 
the  Pope,  if  deprived  of  their  place,  and  it  AA^as  only  settled  by 
alloAA'ing  the  Frenchman  to  continue  in  his  seat  next  to  the 
Legate  Avho  presided,  and  the  Spaniard  to  occupy  a seat  of 
eminence  opposite  to  him.  The  most  serious  outbreak,  hoAV- 
1 See  Ward’s  Hist.,  ii.,  272  seq.  (Dublin  Ed.) 


62  RIGHTS  or  STATES  AS  SOVEREIGNTIES.  §.52. 

ever,  of  this  rivalry  occurred  at  London,  in  1661,  when,  ac- 
cording to  the  usage  of  the  time,  the  ambassadors  went  in 
procession  to  meet  a newly  arrived  ambassador  from  Sweden. 
The  ministers  of  both  nations  appeared  with  an  armed  retinue. 
As  the  Frenchman  attempted  to  put  his  carriage  next  to  that 
of  the  English  king,  the  Spaniards  raised  a shout,  scared  the 
horses,  and  occupied  the  place.  The  French  then  fired  upon 
them,  and  received  back  their  fire,  so  that  eight  were  killed 
and  forty  wounded  in  the  encounter ; but  the  Spaniards,  hav- 
ing during  the  mel^e  cut  the  ham-strings  of  the  French 
horses,  were  able  to  secure  the  coveted  precedence.  Louis 
XIV.  threatened  Avar  for  this  outrage,  and  thus  forced  the 
Spaniards  into  a declaration  that  their  ambassador  should 
never  be  present  at  ceremonies  Avhere  a contest  for  rank  could 
arise  betAveen  them  and  the  French. 

According  to  the  old  rules  of  Eirrope,  the  Pope  (whom 
Protestant  nations  and  Russia  regarded  as  only  an  Italian  sover 
reign)  ranked  highest  in  dignity,  the  German  emperor  next, 
monarchies  before  republics,  sovereigns  before  half-sovereigns, 
and  princes  of  inferior  name  closed  the  list.  The  folloAving 
order  of  rank  emanated  from  the  Roman  court  in  1504 : the 
Roman  emperor,  king  of  Rome,  king  of  France,  of  Spain,  Arra- 
gon,  Portugal,  England,  Sicily,  Scotland,  Hungary,  Navarre, 
Cypi’us,  Bohemia,  Poland,  Denmark  (Avith  AA^hich  Sweden  and 
NorAvay  Avere  then  united),  the  Venetiair  republic,  the  duke  of 
Brittany,  of  Burgundy,  Electors  of  Bavaria,  Saxony,  Branden- 
burg, archduke  of  Austria,  duke  of  Savoy,  grand  duke  of  Flor- 
ence, dukes  of  Milan,  Bavaria,  Lorraine,  etc.^ 

The  rule*  of  late  acted  upon  in  regard  to  the  rank  of  differ- 
ent states  and  of  their  sovereigns  are,  according  to 

Existing  -r-r  iv  ^ ° ° 

ruks  of  Heffter,  the  folloAvmg  : — 

1 . States  to  which,  for  themselves  or  for  their  sov- 
ereigns, royal  honors  pertain,  liaA'e  had  an  external  rank  be- 
fore those  to  Avhich  these  honors  do  not  belong.  Such  honors 
are  the  right  of  sending  ambassadors  of  the  first  class,  the  use 
of  the  royal  title,  croAAm  and  corresponding  arms,  and  certain 
. 1 Heffter,  § 28,  p.  49,  Comp.  Suppl.  to  Dumont,  v.,  202. 


EIGHTS  OF  STATES  AS  SOVEREIGNTIES. 


63 


§ 52. 


other  ceremonial  usages.  To  this  rank  belonged  emperors, 
kings,  grand  dukes,  the  elector  of  Hesse,  the  Swiss  republic, 
the  United  States  of  America,  the  German  confederation. 

2.  Among  states  of  the  same  class  entire  equality  of  rights 
obtains,  but  the  rule  of  precedence,  in  regard  to  rank,  is  settled 
by  treaty  and  usage.  Kings  and  emperors  have  a general  equal- 
ity, as  is  indicated  by  the  fact  that  the  former  frequently  con- 
nect the  latter  title  with  that  by  which  they  are  especially 
known.  A precedence  is  given  to  kings  and  emperors  be- 
fore sovereigns  who  have  inferior  titles,  and  before  republics, 
“ whose  special  relation  of  rank  to  other  states  Avith  royal  hon- 
ors is  not  definitely  fixed.”  ^ There  was  a certain  order  of  the 
German  states  in  relation  to  affairs  of  the  confederation,  and 
to  this  alone.  Half-sovereign  qnd  protected  states  rank  after 
those  on  Avhich  they  depend.  Treaties  by  Avhich  one  state 
concedes  the  precedence  to  another  over  a third,  Avithout  its 
consent,  are  of  no  obligation  upon  the  latter,  and  may  contain 
a violation  of  the  respect  Avhich  is  its  due. 

The  rank  Avhich  a state  has  once  obtained  is  usually  not  lost 
by  a change  of  constitution. 

The  tendency  of  things  is,  as  far  as  possible,  toAA^ards  entire 
equality  of  states.  Thus  commercial  privileges  are 
fast  disappearing,  and  neAV  treaties  to  a great  extent  tinctions 

, , , ^ ° out. 

concede  the  advantages  given  to  the  most  favored 
nations.  The  precedence  of  ambassadors  of  the  same  rank 
is  determined  simply  by  length  of  residence  at  the  court.  And 
special  tokens  of  respect  to  one  nation  more  than  to  another, 
like  those  claimed  by  England  in  certain  narroAV  seas,  have 
nearly  gone  out  of  use. 


1 Heffter,  § 28,  p.  50. 


CHAPTER  II. 


TERRITORIAL  RIGHTS  OF  STATES  AND  EIGHTS  OP  FEOPERTY. 
— STRICT  RIGHT  RENOUNCED,  ESPECIALLY  AS  TO  THE  USE 
OF  NAVIGABLE  WATERS, 


§53. 

A NATION  is  an  organized  community  witliin  a certain  ter- 
ritory ; or  in  otlier  words,  there  must  be  a place  where  its 
Property  of  ^0^*^  Sovereignty  is  exercised.  It  may,  also,  and  will 
teniauonar  have  property  of  its  own,  like  individuals  and  associ- 
law.what?  -itions ; it  maj^  even  hold  such  property  within  the 
borders  of  other  states,  may  be  the  creditor  of  foreign  states  or 
individuals,  or,  unless  the  law  of  a state  prohibit,  may  possess 
land  there  on  the  tenure  of  private  ownership.  Upon  the 
property  of  its  subjects,  again,  it  has  a certain  lien,  as  a^ipears 
from  the  power  to  lay  taxes  and  the  power  to  use  private 
property  for  public  purposes.  The  right  of  eminent  domain, 
however,  with  which  such  power  over  private  projierty  is  con- 
nected, does  not  imply  that  such  property  is  absolutely  under 
the  control  of  the  state,  or  that  the  state  was  the  prior  owner, 
and  conveyed  it  to  the  individual  under  conditions  ; but  it  is 
rather  to  be  considered  as  one  of  necessity,  without  which,  at 
times,  public  affairs  could  not  move  on,  nor  the  rights  of  many 
individuals  be  protected.  Now,  although  the  relations  of  the 
state  to  its  territory,  to  its  property,  and  to  the  property  of  indi- 
viduals are  different,  yet  as  far  as  other  nations  are  concerned, 
they  may  all  be  included  under  tlie  term  property.  “ Such 
property  of  states,”  as  Heffter  well  remarks,  “ has  only  in 
relation  to  other  states  the  same  character  which  proiierty  has. 
namely,  the  character  of  exclusiveness  and  free  disposal,”  tha 


STATES’  RIGHT  OF  PROPERTY,  ETC. 


65 


§ 54. 


is,  of  pertaining  to  the  state  to  the  exclusion  of  all  other  states, 
and  of  being  disposed  of  without  restramt  on  their  part  upon 
its  will. 

A state’s  territorial  right  gives  no  power  to  the  ruler  to 
alienate  a part  of  the  territory  in  the  way  of  barter  or  sale, 
as  was  done  in  feudal  times.  In  other  words,  the  right  is 
a public  or  political  and  not  a personal  one.  Nor  in  justice 
can  the  state  itself  alienate  a portion  of  its  territory,  without 
the  consent  of  the  inhabitants  residing  upon  the  same,  and  if 
in  treaties  of  cession  this  is  done  after  conquest,  it  is  only  the 
acknowledgment  of  an  unavoidable  fact.  (Comp.  § 161,  and 
Grotius,  ii.,  6,  § 4.) 

Property  of  a foreign  state  or  sovereign  within  the  bounds 
of  a state  involves  no  restriction  of  territorial  sovereignty. 
Territorial  servitudes,  as  right  of  free  harbor,  of  transit,  etc., 
may  exist,  but  arc  stricti  juris,  the  presumption  being  always  in 
favor  of  sovereignty.  (Comp.  Bluntschli,  “ Staatsr.,”  i.,  189.) 

§54. 

There  is  a tendency,  in  quite  recent  times,  to  act,  in  inter- 
national arrangements,  upon  the  principle  here  stated, 

^ 1 1 1 1 • ^ 4 . Con.<!ent  of 

that  the  consent  ot  the  inhabitants  ot  a ceded  tern-  inh.abit.int.s 

ii-iTT  i-T-i  ceded  ter- 

toiT  ought  to  be  obtained.  In  the  treaty  of  Prague  ritory  some- 

° n..  7 -TIT  times  asked. 

of  1860  (see  Append.,  ii.,  sub  anno),  it  is  provided  that 
the  rights  of  Austria  to  Schleswig-Holstein  are  ceded  to  Prus- 
sia, “Avith  the  reservation  that  the  inhabitants  in  northern 
SchlesAvig  shall  be  united  anew  to  Denmark,  if  they  express 
the  desire  for  it  in  a free  vote.”  Here,  hoAvever,  the  Danish 
nationality  of  that  part  of  the  duchy  rvas,  Avithout  doubt,  of 
Aveight,  and  of  the  more  Aveight,  as  the  Germans  had  insisted 
on  the  German  nationality  of  both  duchies  in  their  contest 
with  Denmark.  In  1860  the  Neapolitan  provinces  — Sicily, 
the  jMarches,  and  Umbria  — Avere  annexed  to  xhe  kingdom  of 
Italy  in  the  same  Avay  by  direct  aud  universal  suffrage.  The 
decree  of  December  17,  Avhich  declares  the  Neapolitan  proAunces 
to  form  thenceforth  an  integral  part  of  the  kingdom,  is  based  on 
the  submission  of  a plebiscitum  to  the  people,  on  the  proof  that 
5 


66  STATES’  EIGHT  OF  PEOPEETY  § 54. 

it  was  presented  to  them  and  accepted,  and  on  a law  authol'iz- 
ing  the  government  “ to  accept,  and  by  royal  decrees  establish, 
the  annexation  to  the  state  of  those  provinces  of  central  and 
southern  Italy  in  which  there  shall  be  manifested  freely,  by 
direct,  universal  suffrage,  the  rvill  to  become  an  integral  part 
of  the  constitutional  monarchy  ” of  Italy.  In  this  way,  doubt- 
less, it  was  intended  to  turn  a half-right  into  a whole  one,  or 
to  sanctify  unjust  conquest  by  popular  consent.  The  principle 
would  be  a good  and  beneficial  one  as  between  two  states  that 
such  consent  should  be  necessary  before  a transfer  of  allegiance. 
But,  to  make  a desire  on  the  part  of  the  inhabitants  of  a dis- 
trict a ground  for  interfering  on  their  behalf  to  disconnect  them 
from  one  state,  and  to  connect  them  with  another,  would  go 
beyond  any  interference  noAv  known  to  international  law  in  its 
disintegrating  tendency,  and  would  give  rise  to  any  amount  of 
intrigue  and  unjust  influence. 

In  the  Treaty  of  Turin,  uniting  Savoy  and  Nice  to  France, 
the  first  article  provides  that  “ this  union  shall  be  effectuated 
without  constraining  the  will  of  the  inhabitants,  and  that  the 
governments  of  the  Emperor  of  the  French  and  of  the  King  of 
Sardinia  will  agree  as  soon  as  possible  as  to  the  best  means  of 
estimating  and  certifying  the  demonstrations  of  this  will.” 
(Martens,  N.  Rec.  Gen.,  xvi.,  2,  539.  Comp.  App.  ii.,  under 
1859.) 

There  is  another  point  involved  in  this  section  which  de- 
serves a brief  notice.  In  this  age,  when  the  ties  of  race,  of 
common  language,  and  religion  — of  all,  in  short,  which  makes 
up  nationality  — have  so  much  of  importance  attached  to  them, 
there  is  growing  up  a feeling  that,  where  two  nationalities  are 
united  in  one  state  or  nation,  another  state,  belonging  to  one 
of  these  nationalities,  has  a sort  of  right  to  bring  its  brethren 
into  its  pale,  if  they  desire  it.  That  nations  should  take  advan- 
tage of  war  to  alter  their  lines  of  territory  is  natural  and  com- 
mon enough,  and  treaty  brings  such  changes  into  a jural  shape. 
But  the  other  principle  has  for  it  no  natural  justice ; it  generally 
implies  conduct  opposed  to  ancient  treaties,  and  is  against  the 
peace  of  the  world.  Here  it  may  be  asked  whether  there  is 


§ 55.  AND  RIGHTS  OVER  TERRITORY.  67 

any  right  of  prescription  in  public  law  answering  to  the  admit- 
ted right  of  private  law  ? This  right,  as  commonly  understood, 
may  he  defended  on  the  practical  ground  of  the  evil  attendant 
on  the  disturbance  of  old  titles,  or  on  that  of  the  usual  insuf- 
ficiency of  evidence  after  long  possession  by  another  party,  or 
on  the  gi’ound  of  political  economy,  that  the  labor  spent  on  the 
soil  constitutes  (after  fifty  years,  for  instance)  its  principal 
value,  or  on  the  ground  that  the  land,  having  been  abandoned 
and  being  res  7iullins,  became  another’s  by  occupation  (comp. 
Gains,  ii.  67) ; but  none  of  these  reasons  can  be  applied  to 
political  relations,  unless  it  be  the  first.  But  the  title  to  terri- 
tory rests  on  stronger  gi’ound  for  the  most  part  — on  the  con- 
sent formally  expressed  of  all  the  other  parties  to  international 
law,  or,  at  least,  on  the  tacit  recognition,  for  a lapse  of  years, 
of  the  right  of  a state  — i.  e.,  of  an  organized  community 
within  certain  limits  — to  exist  as  such.  'Fo  rake  up  old 
claims  based  on  a forgotten  state  of  things,  after  treaty  or  long 
use  had  buried  tliem,  is  profligate.  Louis  XIV.  may  have 
committed  a great  crime  in  seizing  Strasbourg,  but,  after  his 
possession  was  sanctioned  by  the  German  empire,  at  the  peace 
of  Ryswick,  no  claim  from  the  past  is  any  longer  admissible. 
Prussia  may  have  acted  very  scandalously  in  the  conquest  of 
Silesia,  or  in  the  matter  of  Schleswig-Holstein  ; but,  after  treaty 
has  settled  all  disputes,  it  is  unjust  to  revive  the  old  state  of 
things  — that  is,  for  the  old  reason  ; although  new  wars  on  new 
ground  may  involve  a revival  of  conditions  long  obsolete. 


§ 55. 

The  territory  of  a nation,  or  that  portion  of  the  earth  over 
which  it  exercises  the  rights  of  sovereignty,  may  have  ^ ^ 

begun  to  pertain  to  it  in  a variety  of  ways.  It  may  acquiring 

T ‘ territory. 

have  derived  its  title  — 

1.  From  occupation  of  laud  which  was  before  vacant,  and 
from  prescription,  public  and  uninterrupted. 

2.  From  occupation  by  colonies,  or  other  incorporation  of 
land  before  occupied. 

3.  From  conquest  accepted  as  a fact  and  at  length  ending  in 
prescriptive  right. 


C8 


STATES’  RIGHT  OF  PROPERTY 


§ 55 


4.  P'rom  purchase  or  from  gift4 

Other  claims  more  doubtful  or  less  generally  acknowledged, 
have  been,  (1.)  That  of  Portugal,  derived  from  a bull  of  Pope 
Nicholas  V.  giving  in  l-lSf  to  Alfonzo  V.  the  empire  of 
Guinea,  and  the  exclusive  use  of  the  African  seas ; as  also  the 
claims  resting  on  more  noted  bulls  of  Alexander  VI.  issued  in 
1493  soon  after  the  return  of  Columbus  from  his  first  voyage, 
— the  first  granting  to  Spain  all  lands  west  of  a north  and 
south  line  drawn  a hundred  leagues  west  of  the  Azores,  and 
the  other  dividing  the  occupation  of  the  seas  between  Spain 
and  Portugal.  Such  a claim  would,  of  course,  be  good  only 
against  those  who  admitted  the  pope’s  right  thus  to  dispose  of 
the  world,  which  few  or  no  Catholic  states  would  now  admit. 
(2.)  The  claim  on  the  ground  of  discovery.  This  was  both 
exceedingly  vague,  — for  how  much  extent  of  coast  or  breadth 
of  interior  went  Avitli  the  discovery?  — and  Avas  good  only 
against  those  Avho  acknoAvledged  such  right  of  discovery,  but 
not  against  the  natives.  Of  the  natives,  hoAvever,  v^ery  little 
account  Avas  made.  Being  heathen,  they  Avere  not,  in  the  age 
succeeding  the  discovery  of  America,  regarded  as  having  rights, 
but  might  be  subdued  and  stript  of  sovereignty  over  their 
country  Avithout  compunction.  And  yet  Avhen  the  right  to 
territory  in  the  ncAV  Avorld  Avas  in  dispute,  a title  derived  from 
them,  it  might  be,  to  soil  far  beyond  their  haunts,  Avould  per- 
haps be  pleaded  against  prior  occupation.  The  English  colo- 
nies, hoAvever,  Avhich  settled  in  this  country,  took,  to  a consid- 
erable extent,  tlie  more  just  course  of  paying  for  the  soil  on 
which  tliey  established  themselves,  and  the  United  States  haA^e 
acted  generally  on  the  principle  of  extinguishing  the  Indian 
title  by  treaty  and  tlie  payment  of  a price.^ 

1 Tlius  tlic  emperor  Charles  V.  gave  Malta  (or  strictly  the  jurisdiction  over  it 
and  his  own  rights  there)  to  tho  knighis  of  St.  John  ; and  Tangiers  and  Ronihay 
came  under  tlic  jurisdiction  of  Charles  II.  of  England  as  dower  of  his  wife, 
Catliarinc  of  Rraganza 

2 Noteworthy  is  an  act  of  the  Congress  of  the  United  States  protecting  Ameri- 
can citizens,  discoverers  and  jteaceablc  possessors  of  guano-islands,  in  their  usu- 
fruct, as  long  as  the  guano  should  not  be  exhausted,  provided  however,  that  the 
guano  must  be  shipi>ed  to  the  United  States  at  a certain  rate  (1856).  Wheaton, 
Dana's  note,  § 177.  — T.  S. 


AND  RIGHTS  OVER  TERRITORY. 


69 


§ 56. 


§ 56. 

1.  The  territory  of  a state  includes  all  that  portion  of  terra 
firma  AAdiich  lies  Avithin  the  boundaries  of  the  state,  ^n-hat  is  ter- 
as  well  as  the  Avaters,  that  is,  the  interior  seas,  lakes, 

and  riA^ers  ii'holly  contained  Avithin  the  same  lines.  Thus  the 
sea  of  Azof,  the  Volga,  Lake  Michigan,  the  Ohio,  and  the  Sea 
of  IMarmora  are  exclushmly  in  the  territories  respectiAmly  of 
Russia,  the  United  States,  and  Turkey.  It  maj^  happen  that 
the  boundaries  of  a state  are  not  continuous,  or  that  one  part 
of  it  is  separated  from  another,  as  the  Rhine-proAunces  of 
Prussia  AA’ere  formerly  cut  off  by  Hesse,  etc.,  from  the  rest  of 
the  kingdom.  Or  it  may  happen  that  one  soAmreignty,  or  a 
portion  of  it,  is  included  AAuthin  the  limits  of  another.  This 
has  been  the  case  more  or  less  in  Germany,  and  Avas  formerly 
true  of  Avignon  and  the  Venaissin,  Avhich  Avere  Papal  territory 
enclosed  in  France  — hence  called  enclaves. 

2.  The  mouths  of  rivers,  bays,  and  estuaries,  furnishing 
access  to  the  land. 

3.  The  coast-sea  to  the  distance  of  a marine  league.  Tliis 
is  a regulation  dictated  by  the  necessities  of  self-protection,  as 
is  expre.ssed  in  the  maxim  of  Bynkershoek,  “ Terras  potestas 
finitur  ubi  finitur  armorum  vis.”  For  the  police  of  commerce 
the  distance  is  extended  to  four  leagues,  that  is,  according  to 
the  usage  preAmiling  in  Great  Britain  and  the  United  States, 
foreign  goods  cannot  be  transhipped  Avithin  that  distance  Avitli- 
out  the  payment  of  duties.  The  extent  of  coast-sea  included 
Avithin  national  territoi’y  has  been  variously  defined.  Bynker- 
shoek, and  others  after  him,  limit  it  by  the  reach  of  cannon- 
shot  ; — “ quousque  tormenta  exploduntur.”  (“  He  Domim 
Mar.,”  cap.  2,  from  Avhich  place  the  maxim  above  cited  is  taken.) 
Rayneval  limits  it  by  the  horizon,  a Amry  vague  and  absurd 
suggestion  ; Valin,  by  the  depth  of  the  sea  : territory  should 
reach  out  (lie  Avould  propose)  to  Avhere  there  is  no  bottom. 
INIodern  Avriters,  Avhether  limiting  it  by  a marine  league,  or  by 
cannon  shot,  agree  substantially  in  making  it  an  incident  to 
teri'itorial  sovereignty  on  the  land.  Compare  Ortolan,  “ Diplom. 


70 


STATES’  RIGHT  OF  PROPERTY 


§ 57. 


de  la  Mer,”  vol.  i.,  chap.  8.  As  the  range  of  cannon  is  increas- 
ing, and  their  aim  becoming  more  perfect,  it  might  be  thought 
that  the  sea  line  of  territory  ought  to  -widen.  But  the  point 
is  not  likely  to  become  one  of  any  great  importance. 


57. 


The  right  to  some  kind  and  degree  of  jurisdiction  over  a 
National  of  coast-sea  is  now  admitted  by  writers  on  inter- 

theooast-sca  ’li^tioiial  law  of  all  Christian  nations,^  and  appears  in 
continued.  number  of  treaties  ; and  yet  it  was  not  recognized 
in  Roman  law,  nor  held  to  by  Grotius  in  a precise  sense,  nor 
with  a precise  limit.  He,  however,  admits  that  a portion  of 
the  sea  may  be  occupied  by  him  wdio  possesses  t!io  land  on 
each  side,  “ dummodo  non  ita  magna  sit  pars  maris,  ut  non, 
cum  terris  comparata,  portio  earum  videri  possit.”  But  here 
he  seems  to  be  thinking  of  the  coasts  of  gulfs  and  bays  (ii.,  3, 
8).  From  Bynkershoek  came  the  modern,  more  precise  rule ; 
which  first  limited  the  territorial  right  by  a cannon  shot  and 
then  by  a marine  league.  The  reason  for  the  limitation  seems 
to  have  been  to  remove  the  alarms  and  dangers  of  foreign 
war  from  the  shores  of  friendly  states. 

An  important  question  is.  How  mucli  or  what  degree  of 
right  a state  has  over  tliat  part  of  the  high,  sea  Avliich  waslies 
its  shores.  The  ansAver  must  be  that  the  right  is  a limited 
one.  No  vessel  pursuing  its  AA^ay  on  the  high  seas  can  commit 
an  offense  by  sailing  Avithin  a marine  league  of  the  shore.  No 
restriction  Avould  be  possible,  and  the  liberty  of  the  sea  to  all 
must  not  be  interfered  Avith,  unless  for  an  important  reason. 
Such  a reason  is  found  in  the  need  of  security  and  of  freedom 
from  disturbance  of  the  dAvellers  on  the  coast,  or  of  those  Avho, 
like  fishermen,  pursue  their  employments  on  the  adjoining 
sea  ; and  in  the  possible  injury  to  the  revenue,  if  foreign  ves- 
sels could  take  a position  remote  from  a port,  Avhero  by  means 

1 Among  the  publicists  we  may  mention  besides  Rynkcr.sbock,  Vattel,  Liv.  1, 
§ 288;  Pbillimore,  i , cb.  8;  Twi.ss,  Rif/his,  etc.,  in  Peace,  § 172  ; Sir  E.  Creasy, 
§ 241 ; Ileffter,  ed.  .5,  § 7.')  ; Kluber,  Morstadt’s  revis.,  § 130  ; Ortolan,  I.iv.  ii., 
chap.  8,  p.  154,  and  the  autliors  there  cited  ; Hautefeuille,  Tit.  1,  chapter  iii, 
sec.  1 ; Kent  and  Wheaton ; Calvo,  Liv.  v.,  § 201. 


§ 57.  AND  RIGHTS  OVER  TERRITORY.  71 

of  small  craft  they  could  send  their  goods  to  the  shore  or 
otherwise  evade  the  laws.  As  for  the  right  of  preventing 
foreign  fishermen  from  catching  fish  within  a marine  league  of 
land,  and  the  right  of  forbidding  the  transshipment  of  foreign 
goods,  Avithout  paymg  duties,  at  a still  greater  distance,  they 
will  be  noticed  elsewhere.  §§  59,  212. 

An  important  mquiry  is  whether  crimes  committed  within 
this  belt  of  sea  by  persons  on  foreign  vessels  come  Avithin  the 
jurisdiction  of  the  courts  of  the  adjoining  land,  or  of  the  coun- 
try to  Avhich  the  A*essel  belongs  on  board  of  Avhich  the  crime 
was  committed.  If  the  crime  took  place  on  a vessel  Avhich 
was  on  its  Avay  and  happened  to  be  Avithin  this  belt,  and  the 
injured  party  was  one  of  the  passengers,  the  A^essel’s  sovereign 
would  Avithout  question  haA’e  the  jurisdiction.  But  AA'hat  ought 
to  be  said  of  an  injury  committed  Avithin  such  Avaters  by  a 
foreign  vessel  Avhere  the  injured  person  was  Avholly  discon- 
nected from  the  A'essel?  Such  a case  occurred  in  1876,  Avhere 
the  Franconia,  a German  steamer,  came  into  a collision  Avith 
a British  steamer  within  British  waters  less  than  three  miles 
from  the  coast ; which  collision  resulted  in  the  death  of  seAnral 
persons  on  board  of  the  latter.  The  German  captain,  being 
found  on  English  soil  afterwards,  was  arrested,  tried,  and 
found  guilty  of  homicide,  but  on  appeal  to  the  highest  court, 
was  acquitted  on  the  ground  that  he  was  “ a foreign  subject, 
on  a foreign  ship,  on  a foreign  voyage,  and  on  the  high  seas  at 
the  time  the  offense  was  committed,  and  so  not  amenable  to 
the  laAvs  of  the  country ; there  was,  therefore,  no  jurisdiction 
to  try  him,  and  consequently  the  conviction  was  illegal.”  Such 
was  the  opinion  of  the  Chief  Justice,  and  six  of  the  other 
judges  out  of  tweh’e.  But  the  decision  Avas  based  on  the  con- 
sideration that  mere  international  law,  without  a law  of  Par- 
liament, could  not  giA’e  authority  to  act  in  the  case,  could  not 
alloAV  the  judges  to  try  a foreigner  committing  a crime  on  a 
foreign  A'essel  AAuthin  the  marine  league  of  land.  The  Chief 
Justice  says,  that  “ if  by  the  assent  of  other  nations  the  three 
miles  belt  of  sea  has  been  brought  under  the  dominion  of  this 
country,  so  that  consistently  with  the  rights  of  other  nations, 


72 


STATES’  RIGHT  OF  PROPERTY 


§ 57. 

it  may  be  treated  as  a portion  of  British  territory,  it  follows 
as  a matter  of  course  that  Parliament  can  legislate  in  respect 
of  it.  The  question  is  whether  legislative  action  shall  be  ap- 
plied to  meet  the  exigency  of  the  case,  or  judicial  authority 
shall  be  strained  and  misapplied  in  order  to  overcome  the  dif- 
ficulty.” And  another  of  the  justices  said  that,  “ although,  as 
hetiveen  nation  and  nation,  these  waters  are  British  territory, 
as  being  under  the  exclusive  dominion  of  Great  Britain,  in 
judicial  language  they  are  out  of  the  realm;  and  any  exercise 
of  criminal  jurisdiction  over  a foreign  ship  in  these  waters 
must  in  [his]  judgment  be  authorized  by  act  of  Parliament.” 
Thus  the  case  somewhat  resembled  that  of  a crime  defined  by 
treaty  Avithout  a laAV  being  made  by  a legislature  to  prescribe 
the  penalty.  A court  could  not  act  upon  the  case.  But  the 
right  of  the  legislature  to  make  the  necessary  laAvs,  or,  in  other 
Avords,  the  right  of  criminal  jurisdiction  Avithin  the  three  miles 
seemed  to  be  affirmed.  And  indeed,  on  the  Avhole  the  forum 
of  the  territory,  nearest  to  Avhich  the  injury  occurred  or  the 
crime  Avas  committed,  seems  to  be  by  far  the  most  convenient 
place  for  obtaining  justice. 

§ 58. 

4.  Vessels  belonging  to  the  citizens  of  the  nation  on  the 
high  seas,  and  public  vessels,  Avherever  found,  have 
^™theica  some  of  the  attributes  of  territory, 
territory.  recpard,  hoAvever,  to  the  territorial  character  of 

vessels  it  is  necessai'y  to  be  more  definite,  for  if  they  have  this 
property  in  some  respects  but  not  in  all,  only  false  and  illogi- 
cal deductions  can  be  draAAUi  from  an  unqualified  statement. 
Is  it  true,  then,  that  they  are  identical  in  their  properties  Avith 
territory  ? If  a ship  is  confiscated  on  account  of  piracy  or  of 
violation  of  custom-house  laAVS  in  a foreign  port,  or  is  there 
attached  by  the  OAAUier's  creditor  and  becomes  bis  property,  Ave 
never  think  that  territory  has  been  taken  aAvay.  For  a crime 
committed  in  port  a vessel  may  be  chased  into  the  high  seas 
and  there  arrested,  Avithout  a suspicion  that  territorial  rights 
have  been  violated,  Avhile  to  chase  a criminal  across  the  bor 


§59.  AND  RIGHTS  OVER  TERRITORY.  73 

clers  and  seize  him  on  foreign  soil  is  a gross  offense  against 
sovereignty.  Again,  a private  vessel  when  it  arrives  in  a 
foreign  port,  ceases  to  he  regarded  as  tearritory,  unless  treaty 
provides  otherwise,  and  then  becomes  merely  the  property  of 
aliens.  If  injury  is  done  to  it,  it  is  an  injury  which  indirectly 
affects  the  sovereign  of  the  alien,  whereas  injuries  to  territory, 
properly  so  called,  affect  the  public  power  in  an  immediate 
manner.  It  is  unsafe,  then,  to  argue  on  the  assumption  that 
ships  are  altogether  territory,  as  will  appear,  perhaps,  when 
we  come  to  consider  the  laws  of  maritime  warfare.  On  the 
other  hand,  private  ships  have  certain  qualities  resembling 
those  of  territory:  (1.)  As  against  their  crews  on  the  high 
seas ; for  the  territorial  or  municipal  law  accompanies  them 
as  long  as  they  are  beyond  the  reach  of  other  law,  or  until 
they  come  within  the  bounds  of  some  other  jurisdiction.  (2.) 
As  against  foreigners,  who  are  excluded  on  the  high  seas  from 
any  act  of  sovereignty  over  them,  just  as  if  they  Avere  a part 
of  the  soil  of  their  country.  Public  vessels  stand  on  higher 
ground : they  are  not  only  public  property,  built  or  bought  by 
the  government,  but  they  are,  as  it  AA^ere,  floating  barracks,  a 
part  of  the  public  organism,  and  represent  the  national  dig- 
nity, and  on  these  accounts,  even  in  foreign  ports,  are  exempt 
from  the  local  jurisdiction.  In  both  cases,  hoAvever,  it  is  on 
account  of  the  crew,  rather  than  of  the  ship  itself,  that  they 
have  any  territorial  quality.  Take  the  crew  aAvay,  let  the 
abandoned  hulk  be  met  at  sea  : it  noAV  becomes  property,  and 
nothing  more. 


§ 59. 

The  high  sea  is  free  and  open  to  all  nations.  It  cannot  be 
the  property  or  the  empire  of  a particular  state.  It  of 

cannot  become  property^  for  it  cannot  be  possessed, 
or  have  any  persouid  action  exercised  upon  it,  Avhich 
must  preA'ent  a similar  action  of  another.  It  cannot  be  mixed 
uj)  Avith  labor,  or  enclosed,  or,  like  Avild  land,  be  Avaiting  for 
any  such  future  action.  It  can,  as  little,  become  the  empire. 
of  any  particular  state.  OtherAvise  one  state  might  exclude 


74  STATES’  EIGHT  OF  PROPERTY  § 5&. 

others  from  it,  ami  from  that  intercourse  for  which  it  is  the 
pathway,  which  would  be  inconsistent  Avith  the  equality  and 
sovereignty  of  nations.  Such  empire  could  begin  only  in  the 
consent  of  the  Avhole  Avorld  exjaressed  by  treaty,  which  Avas 
never  given,  or  in  prior  discovery  and  use.  But  this  last  is  no 
ground  at  all,  and  if  it  Avere,  Avould  Avork  against  the  so-called 
discoverer  in  faA'or  of  the  natives  of  iieAvly  found  coasts.  In 
fine,  the  destination  of  the  sea  is  clearly  for  the  common  ben- 
efit of  mankind ; it  is  a common  patliAvay,  separating  and  yet 
binding,  intended  alike  for  all. 

The  liberty  of  the  sea  and  of  navigation  is  now  admitted 
on  all  hands.  But  formerly  the  ocean,  or  portions  of  it,  Avere 
claimed  as  a monopoly.  Thus  the  Portuguese  prohibited  other 
nations  from  sailing  in  the  seas  of  Guinea  and  to  the  East  In- 
dies. No  native-born  Portuguese  or  alien,  says  one  of  the 
ancient  royal  ordinances,  shall  traverse  the  lands  or  seas  of 
Guinea  and  the  Indies,  or  any  other  territory  conquered  by  us, 
Avithout  license,  on  pain  of  death  and  the  loss  of  all  his  goods. 
The  Spanish  nation  formerly  claimed  the  right  of  excluding 
all  others  from  the  Pacific.  Against  such  claims,  especially  of 
the  Portuguese,  Grotius  wrote  his  “Mare  Liberum”  in  1609,  in 
AA'liich  he  lays  doAvn  the  general  principle  of  the  free  right  of 
navigation,  and  that  the  sea  cannot  be  made  property,  and  re- 
futes the  claims  of  the  Portuguese  to  the  discovery  of  countries 
Avhich  the  ancients  have  left  us  an  account  of,  as  Avell  as  their 
claims  through  the  donation  of  Pope  Alexander  VI.  And  yet 
thg  countrymen  of  Grotius,  aaTo  had  been  defenders  of  the 
liberty  of  the  seas,  sought  to  prevent  the  Spaniards,  going  to 
the  Philippines,  from  taking  the  route  of  the  Cape  of  Good 
Hope.  The  English,  in  the  seventeenth  century,  claimed  prop- 
erty in  the  seas  surrounding  Great  Britain,  as  far  as  to  the 
coasts  of  the  neighboring  countries,  and  in  the  eighteenth  only 
softened  doAAUi  the  claim  of  property  into  one  of  soA^ereignty. 
Sehlen,  Avho  in  1635,  published  his  “ Mare  Clausum,”  Avhile  he 
contends  against  the  monopolizing  pretensions  of  Spain  and 
Portugal,  contends  zealously  on  the  ground  of  certain  Aveak 
ancient  precedents  for  this  claim  of  his  country.  The  shores 


AND  RIGHTS  OVER  TERRITORY. 


75 


§ 5?. 

and  ports  of  the  neighboring  states,  says  he,  are  the  limits  of 
the  British  sea-empire,  but  in  the  wide  ocean  to  the  north  and 
Avest  the  limits  are  yet  to  be  constituted.^  Russia,  finally,  at 
a more  recent  date,  based  an  exclusive  claim  to  the  Pacific, 
north  of  the  olst  degree,  upon  the  ground  that  this  part  of  tlie 
ocean  was  a passage  to  shores  lying  exclusively  within  her 
jurisdiction.  But  this  claim  was  resisted  by  our  government, 
and  AvithdraAvn  in  the  temporary  convention  of  1824.  A 
treaty  of  the  same  empire  with  Great  Britain  in  1825  con- 
tained similar  concessions. 

The  rights  of  all  nations  to  the  use  of  the  high  sea  being 
the  same,  their  right  to  fish  upon  tlie  high  seas,  or  on  banks 
and  shoal  places  in  them  are  equal.  The  right  to  fish  in  bays 
and  mouths  of  rivers  depends  on  the  will  of  the  sovereign. ^ 

Thus  the  right  to  fish  on  the  banks  of  Newfoundland  is 
open  to  all,  but  there  is  no  right  to  dry  and  cure  Fishery 

^ II*  question  be- 

lish,  even  on  the  imsettled  coasts  belonging  to  any  tween  the 

• *1  • • Til  A 1 United 

sovereign,  without  permission  oi  tlie  same.  And  states  and 
here  a brief  sketch  of  the  fishery  question  betAveen  am. 
the  United  States  and  Great  Britain  may  not  be  out  of  place. 

^ Compare  Ortolan,  n.  s.,  chap.  vii. 

2 The  liberty  of  the  sea  being  now  admitted,  there  seem  to  be  no  rea.sons  of 
absolute  right  why  a nation  should  exclude  the  fishing  vessels  of  another  from 
within  a marine  league  of  its  co.ast.  There  is  a difficulty  in  ascertaining,  especially 
along  a curved  shore,  how  the  line  between  tbc  open  and  the  territorial  sc.a  is  to 
run,  and  it  is  equally  difficult  for  the  fisherman  to  know  where  the  line  runs  or  to 
kee|)  outside  of  it  when  it  is  known.  Quarrels  of  fishermen  of  two  nationalities 
may  be  to  some  extent  prevented  by  such  a police  law,  but  its  enforcement  pro- 
duces no  small  amount  of  hostility.  We  look  for  <a  time  when  no  such  lines  and 
no  restriction  on  the  transport  of  fish  by  any  fishermen  to  any  market  shall  exist. 

And  yet  the  right  of  excluding  foreign  fishermen  from  certain  waters  is  re- 
ceived .and  i)racticed.  — for  instance  as  hetween  France  and  England,  — and  the 
same  right  exists,  by  decision  of  the  Supreme  Court  of  the  United  States,  in  tiny 
one  of  the  States,  of  prohibiting  b}'  law  the  inhabitants  of  another  from  fishing 
within  the  tide-waters  of  its  territory.  Compare  an  article  in  the  American  Law 
Review  for  July,  1877,  by  Judge  Dwight  Foster,  formerly  of  the  Supreme  Court 
of  Massachitsetts. 

The  right  to  prohibit  foreign  fishermen  from  catching  shell-fish  seems  to  have 
reasons  of  its  own.  They  are  caught  near  the  shore,  within  tide-water,  and  need 
laws  for  their  protection  at  certain  .seasons:  they  may  be  cultivated  by  private 
persons  on  their  own  lands  ; they  need  in  short  a police  which  is  not  required  for 
fish  in  the  proper  sense  of  the  term. 


76 


STATES’  EIGHT  OF  PROPEETY 


§ 59. 


By  the  treaty  of  1783,  which  admitted  the  independence  of 
Troty  of  United  States,  Great  Britain  agreed  that  they 

should  continue  to  enjoy  the  right  of  fishing  on  the 
Banks  of  Newfoundland,  and  the  liberty  of  fishing  along  such 
coasts  of  the  same  island  as  were  used  by  British  seamen,  in 
the  Gulf  of  St.  Lawrence,  and  on  the  coasts,  bays,  and  creek'i 
of  all  other  British  dominions  in  America;  as  well  as  the 
liberty  of  drying  and  curing  fish  in  any  of  the  unsettled  bays, 
harbors,  and  creeks  of  Nova  Scotia,  the  Magdalen  Islands,  and 
Labrador,  so  long  as  these  should  continue  unsettled ; but  not 
that  of  drying  or  curing  on  the  island  of  Newfoundland. 

At  and  after  the  treaty  of  Ghent,  which  contained  no  pro- 
Treatv  of  visioiis  respecting  the  fisheries,  it  was  contended  by 
Ghent,  1814.  American  negotiators,  but  with  reasons  which  Great 
Britain  would  not  accept  (see  § 160),  that  the  article  of  the 
peace  of  1783,  relating  to  the  fisheries,  was  in  its  nature  per- 
convention  potnal,  uiid  tliiis  iiot  annulled  by  the  war  of  1812. 
of  1818.  ^ convention  in  1818  granted  the  perpetual  privilege 

to  citizens  of  the  United  States  to  take,  dry,  and  cure  fish,  on 
the  coasts,  while  unsettled,  of  Labrador,  east  of  Mt.  Joli,  and  of 
Newfoundland,  between  Cape  Ray^  and  the  Rameau  isles  ; and 
to  take  fish  on  the  IMagdalen  isles,  and  on  the  Avest  and  north 
coasts  of  Newfoundland,  — the  United  States  renouncing  for- 
ever any  liberty  “to  take  or  cure  fish,  on,  or  Avithin  three  ma- 
rine miles  of  any  of  the  coasts,  bays,  creeks,  or  harbors  of  Ids 
Britannic  Alajesty’s  dominions  in  America  not  included  with-' 
in  the  above-mentioned  limits.^  Subsequently,  by 
the  treaty  of  1851,  commonly  called  the  Reciprocity 
Treaty,  leave  Avas  given  to  fishermen  from  the  United  States  to 
take  fish,  excepting  shell-fish,  on  the  coasts  and  in  the  bays, 
harbors,  and  creeks  of  Canada,  NeAV  Brunswick,  Nova  Scotia, 
Prince  EdAvard’s  Island,  and  the  islands  adjacent,  Avithout  limit 
as  to  distance  from  the  shore,  Avith  permission  to  land  there 
and  upon  the  Magdalen  Islands  for  the  purpose  of  drying  their 
nets  and  curing  their  fish  ; provided  that  in  so  doing  they  do 
not  interfere  Avith  private  rights  or  prior  occupancy  by  British 
1 See  Wheaton’s  Elements,  ii.,  4,  § 8,  and  iii.,  2,  § 9. 


Treaty  of 
1854. 


§60. 


AND  RIGHTS  OVER  TERRITORY. 


77 


! fishermen.  The  same  rights,  witli  the  same  limitations,  are 

I given  to  British  subjects  on  the  coasts  of  the  United  States 

j from  the  36th  degree  northwards.  In  both  cases  the  treaty 

I does  not  include  salmon  and  shad  fisheries,  nor  the  fisheries  in 

I rivers  and  the  mouths  of  rivers. ^ This  treaty,  terminable 

I in  or  after  ten  years,  was  terminated  by  the  United  St:ites  in 

1866.  And  again  by  the  treaty  of  Washington  of  1871,  the 
! reciprocity  of  the  treaty  of  1854  was  restored  in  great  measure. 

I (See  the  sketch  of  the  treaty  under  1871  in  Appendix  ii.) 

§ 60. 

I The  claims  of  exclusive  control  over  certain  portions  of 
water  are,  in  great  part,  either  doubtful  or  to  be  re-  ciaim.'iofex- 
jected.  These  are  broad  arms  or  recesses  of  the  sea  ; tilofovcrccT- 
narrow  seas  not  shut  up  within  the  territory  of  a 
single  state ; narrow  passages,  especially  such  as  lead  to  in- 
terior seas  ; such  interior  seas  themselves  ; and  rivers  furnish- 
ing the  only  or  most  convenient  outlet  for  an  inland  state, 
which  rise  in  one  country  and  have  their  mouths  in  another. 

1.  Bays  of  the  sea  — called  in  England  the  king’s  cham- 
bers — are  within  the  jurisdiction  of  the  states  to 
Avhose  territory  the  promontories  embracing  them 
belong.  Thus  the  Delaware  Bay  was  declared  in  1793  to  be- 
long exclusively  to  the  United  States.  When,  however,  the 
headlands  are  verv  remote,  there  is  more  doubt  in  resrard  to 
the  claim  of  exclusive  control  over  them  ; and,  for  the  most 
part,  such  claim  has  not  been  made.  Chancellor  Kent  (i.,  30) 
inclines  to  claim  for  the  United  States  the  dominion  over  a 
very  Avide  extent  of  the  adjacent  ocean.  “ Considering,”  says 
he,  “the  great  extent  of  the  line  of  the  American  coasts,  we 
have  a right  to  claim,  for  fiscal  and  defensive  regulations,  a 
liberal  extension  of  maritime  jurisdiction;  and  it  Avould  not 
be  unreasonable,  as  I appi’ehend,  to  assume  for  domestic  pur- 
poses connected  Avith  our  safety  and  Avelfare  the  control  of 
Avaters  on  our  coasts,  though  included  Avithin  lines  stretching 
from  quite  distant  headlands,  — as,  for  instance,  from  Cape 
1 Murhard,  Nouv.  Rec.,  16,  1.  498. 


78  STATES’  RIGHT  OF  PROPERTY  § BO.: 

Ann  to  Cape  Cod,  and  from  Nantucket  to  Mon  tank  Point,  and 
from  that  point  to  the  Capes  of  the  Delaware,  and  from  the 
south  Cape  of  Florida  to  the  Mississippi.  In  1793  our  gov- 
ernment thought  they  were  entitled,  in  reason,  to  as  broad  a 
margin  of  protected  navigation  as  any  nation  whatever,  though 
at  that  time  they  did  not  positively  insist  beyond  the  distance, 
of  a marine  league  from  the  sea-shores  ; and,  in  1806,  our  gov- 
ernment thought  it  would  not  be  unreasonable,  considering 
the  extent  of  the  United  States,  the  shoalness  of  their  coast, 
and  the  natural  indication  furnished  by  the  Avell-defined  path 
of  the  Gulf  Stream,  to  expect  an  immunity  from  belligerent 
Avarfare  for  the  space  between  that  limit  and  the  American 
shore.”  But  such  broad  claims  have  not,  it  is  believed,  been 
much  urged,  and  they  are  out  of  character  for  a nation  that 
has  ever  asserted  the  freedom  of  doubtful  Avaters,  as  Avell  as 
contrary  to  the  spirit  of  the  more  recent  times. 

2.  Great  Britain  long  claimed  supremacy  in  the  narroAV  seas 
adjoining  that  island.  But  the  claim,  although  cheaply  satis- 
fied by  paying  certain  honors  to  the  British  flag,  Avas  not  uni- 
formly acquiesced  in,  and  has  fallen  into  desuetude.^  And  if 
it  had  been  urged  and  admitted  in  former  times,  the  force  of 
the  prescription  Avould  be  broken  by  the  plea  that  the  views 
of  the  Avorld,  in  regard  to  the  freedom  of  commerce,  have  be- 
come much  more  enlarged.  What  Grotius  contended  for  in 
his  “Mare  Liberum”  against  tbe  exclusive  claim  of  Portugal  to 
the  possession  of  oriental  commerce,  “jure  gentium  quibusvis 
ad  quosvis  liberam  esse  navigationem,”  is  now  for  the  most 
part  admitted,  and  the  pathways  of  commerce  can  no  longer 
be  obstructed.^ 

§ 61. 

3.  The  straits  which  have  figured  most  largely  in  interna- 
straitsand  tional  liistory  are  those  leading  into  the  Baltic  and 

inland  seas.  Black  ScaS. 

1 Compare  Vattcl,  i.,  23,  § 289;  A;\’'heaton’s  , Part  I.,  § 18;  Wheaton’s 

Elements,  ii.,  4,  § 9 ; Heffter,  § 73.  See  also  § 85. 

2 Compare  what  the  Lord  Chief  Justice  of  England  says  of  these  claims  in  his 
decision  in  the  case  of  the  Franconia,— “ the  claim  to  such  sovereignty,  at  all 
times  unfounded,  has  long  since  been  abandoned  *’  by  England. 


§61. 


AND  RIGHTS  OVER  TERRITORY. 


79 


A.  The  claims  of  Denmark  to  exclusive  control  over  El- 
sineur  Sound  and  the  Belts,  are  now  matters  of  his-  ^he  Danish 
tory,  hut  a brief  sketch  of  the  past  usage  may  not  be 
Avithout  its  use.  Danish  jurists  rested  these  claims  rather  on 
immemorial  prescription  than  on  the  cost  of  providing  for  the 
security  of  commerce  by  lighthouses,  or  by  removing  obstacles 
to  navigation.  In  1319,  a charter  regulated  the  duties  to  be 
paid  by  the  Dutch.  In  1544  the  Emperor  Charles  V.  stipu- 
lated the  payment  of  the  Sound  dues  by  the  merchants  of  the 
Low  Countries.  Subsequently,  Denmark  raised  the  tariff, 
Avhich  brouf{ht  on  a Avar  Avith  the  Dutch  and  other  nations. 
In  1645  SAveden  obtained  exemption  from  tolls,  and,  at  the 
same  time,  by  the  treaty  of  Christianstadt,  the  amount  of 
duties  to  be  paid  by  the  Dutch  Avas  again  adjusted.  France 
and  England,  in  the  seventeenth  century,  agreed  to  pay  the 
same  tariff  Avitli  the  Dutch. 

Things  continued  thus  for  tAvo  centuries.  In  1840,  atten- 
tion having  been  drawn  in  England  to  the  Sound  dues  by  the 
delays  and  vexations  of  commerce,  negotiations  were  had 
Avhich  removed  part  of  the  complaints. 

In  1826  a commercial  convention  for  ten  years  with  Den- 
mark placed  the  United  States  on  the  footing  of  the  most 
favored  nations,  Avhich  caused  a reduction  of  the  duties  we 
had  been  paying  hitherto.  In  1843  the  justice  of  the  demand 
began  to  be  more,  especially  draAvn  into  question,  and  the  Sec- 
retary of  State  expressed  himself  against  it.  Amid  the  diffi- 
culties of  Denmark,  in  1848,  the  Chargd  from  the  United 
States  proposed,  as  a commutation  for  the  claim,  the  sum  of 
two  hundred  and  fifty  thousand  dollars.  Five  years  afterAvards 
the  diplomatic  agent  of  the  United  States  Avas  insti-ucted  by 
Mr.  Marcy  to  take  the  ground  Avith  Denmark,  that  his  coun- 
try could  recognize  no  immemorial  usage  not  coinciding  with 
natural  justice  and  international  laAV.  In  the  next  year  the 
President  advised  that  the  convention  of  1826  should  be  re- 
garded as  at  an  end  ; and,  after  a vote  of  the  Senate  to  this 
effect,  notice  was  given  to  Denmark  that  it  Avould  be  broken 
off  in  a year  from  that  time.  Denmark  noAv,  in  October,  1855, 


80 


STATES’  EIGHT  OF  PROPERTY 


§61. 


proposed  to  our  government  to  enter  into  a plan  of  capitalizing 
the  dues  according  to  an  equitable  adjustment,  but  the  govern- 
ment declined  being  a party  to  such  an  arrangement.  Mean- 
while, as  difficulties  witli  the  United  States  seemed  to  be  im- 
pending, and  as  other  nations  were  interested  in  putting  an 
end  to  this  annoyance,  a congress  met  at  Copenhagen,  to  con- 
sider this  question,  and  fixed  on  the  sum  of  thirty-five  million 
rixdollars  (at  fifty  cents  of  our  money  to  the  dollar)  as  the 
sum  for  which  Denmark  ought  to  give  up  the  Sound  dues  for- 
ever. This  payment  was  divided  among  the  nations  interested, 
in  proportion  to  the  value  of  their  commerce  passing  through 
the  Danish  straits  ; and  an  arrangement  for  extinguishing  the 
claim  has  since  been  accepted  by  thejn  all.  In  March,  1867, 
our  government  agreed  to  pay,  as  its  portion  of  the  capitalized 
stock,  three  hundred  ninety-three  thousand  and  eleven  dol- 
lars.^ 

B,  The  entrance  into  the  Black  Sea  and  that  sea  itself. 
The  Black  UntH  Russiu  acquired  territory  on  the  Black  Sea, 
pasMge^i'nto  ^hat  sea,  with  the  straits  leading  to  it,  and  the  sea 
of  Marmora,  lay  entirely  Avithin  Turkish  territory. 
But  the  existence  of  another  power  on  the  Black  Sea  modified 
the  rights  of  Turkey.  Bj^  the  treaty  of  Adrianople,  in  1829, 
entrance  througli  the  straits  into  the  Black  Sea,  and  its  navi- 
gation, Avere  admitted  to  belong  to  Russia  and  to  poAvers  at 
amity  Avith  Russia.  The  ancient  practice,  hoAvever,  had  been 
to  prohibit  all  foreign  vessels  of  war  from  entering  the  Bos- 
phorus and  the  Dardanelles  ; and  bjr  the  treaty  of  London,  in 
1841,  between  the  five  poAvers  and  Tui’key,  this  usage  Avas 
sanctioned.  Finally,,  by  the  treaty  of  Paris,  March  30,  1856, 
“ the  Black  Sea  is  made  neutral.  Open  to  tlie  mercantile 
marine  of  all  nations,  its  Avaters  and  ports  are  formallj'-,  and  in 
perpetuity,  interdicted  to  flags  of  Avar,  Avhether  belonging  to 
the  bordering  powers,  or  to  any  other  poAver.”  The  treatj^ 
hoAvever,  proceeds  to  grant  to  Russia  and  Turkey  the  liberty 
of  making  a convention  in  regard  to  a small  force,  to  be  kept 

1 Compare  especially  an  article  in  ilie  North  American  Review  for  January 
1857,  vol.  Ixxxiv.,  from  which  Ave  have  drawn  freely. 


AND  RIGHTS  OVER  TERRITORY. 


81 


§ C2. 

up  within  the  sea  for  coast  service.  By  this  convention  the 
two  powei’S  allow  one  another  to  maintain  six  steam-vessels 
of  not  over  eight  hundrecl  tons,  and  four  liglit  steamers,  or 
sailing  vessels,  of  not  over  t\vo  hundred  tons  burden  each.^ 

§ 62. 

4.  Whei’e  a navigable  river  forms  the  boundary  between 
two  states,  both  are  presumed  to  have  free  use  of  it, 

^ over 

and  the  dividing  line  will  run  in  the  middle  of  the  nver  navi- 
channel,  unless  the  contrary  is  shown  by  long  occu- 
pancy or  agreement  of  the  parties.  If  a river  changes  its  bed, 
the  line  through  the  old  channel  continues,  but  the  equitable 
right  to  the  free  use  of  the  stream  seems  to  belong,  as  before, 
to  the  state  whose  territory  the  river  has  forsaken. 

When  a river  rises  within  the  bounds  of  one  state  and  emp- 
ties into  the  sea  in  another,  international  law  allows  to  the 
inhabitants  of  the  upper  waters  only  a moral  claim  or  imper- 
fect right  to  its  navigation.  We  see  in  this  a decision  based 
on  strict  views  of  territorial  right,  which  does  not  take  into 
account  the  necessities  of  mankind  and  their  destination  to 
hold  intercourse  with  one  another.  When  a river  affords  to 
an  inland  state  the  only,  or  the  only  convenient  means  of  access 
to  the  ocean  and  to  the  rest  of  mankind,  its  right  becomes  so 
strong,  that  according  to  natural  justice  possession  of  territory 
ought  to  be  regarded  as  a far  inferior  ground  of  right.  Is  such 
a nation  to  be  crippled  in  its  resources,  and  shut  out  from 
mankind,  or  should  it  depend  on  another’s  caprice  for  a great 
part  of  what  makes  nations  fidfill  their  vocation  in  the  world, 
merely  because  it  lies  remote  from  the  sea  which  is  free  to  all? 
Ti  ansit,  then,  Avhen  necessary,  may  be  demanded  as  a right  : 
an  interior  nation  has  a servitude  along  nature’s  pathway, 
through  the  property  of  its  neighbor,  to  reach  the  great  high- 
way of  nations.  It  must,  indeed,  give  all  due  security  that 
trespasses  shall  not  be  committed  on  the  passage,  and  pay  all 

^ For  modification.s  of  tlie  treaty  of  1856  in  1871,  see  the  sketch  of  the  treaty  of 
1856,  at  its  close.  Append,  ii,,  under  1850,  at  the  end. 

6 


82 


STATES’  RIGHT  OF  PROPERTY 


§62. 


equitable  charges  for  improvements  of  navigation  and  the  like ; 
but,  this  clone,  its  travelers  should  be  free  to  come  and  go  on 
that  water-road  which  is  intended  for  them.  An  owner  of  the 
lower  stories  of  a house  could  hardly  shut  out  persons  living 
in  the  upper,  of  which  there  was  another  proprietor,  Irom  the 
use  of  the  stairs.  — A river  is  one.  As  those  who  live  on  the 
upper  waters  would  have  no  right  to  divert  the  stream,  so 
those  on  the  lower  cannot  rightfully  exclude  them  from  its 


use. 

The  law  of  nations  has  not  acknowledged  such  a right,  but 
has  at  length  come  to  the  same  result  by  opening,  in  succes- 
sion, the  navigation  of  nearly  all  the  streams  flowing  through 
the  territory  of  Christian  nations  to  those  who  dwell  upon 
their  upper  waters,  or  even  to  mankind.  We  annex  a sketch 
of  the  progress  of  this  freedom  of  intercourse  by  means  of 
rivers. 

An  Act  of  the  Congress  of  Vienna,  in  1815,  declared  that 
the  use  of  streams  separating  or  traversing  the  ter- 
wenn^^The  iltoi’y  of  different  powers,  should  be  entirely  free, 
and  not  be  denied  for  the  purposes  of  commerce  to 
any  one,  being  subject  only  to  police  rules,  which  should  be 
uniform  for  all,  and  as  favorable  as  might  be  for  the  traffic  of 
all  nations.  Other  articles  require  uniform  tolls  for  the  whole 
length  of  a stream,  and  nearly  uniform,  — not  exceeding  the 
actual  rate,  — for  the  various  kinds  of  goods,  rights  of  haulage, 
etc.^ 

By  this  act  the  Rhine  became  free  ; but  a controversy  hav- 
ing arisen  as  to  what  was  to  be  understood  by  the  Rhine, 
near  the  sea,  it  was  decided  by  the  nations  having  sovereignty 
over  its  banks,  that  navigation  should  be  open  through  the 
mouths  called  the  Waal  and  the  Leek,  and  through  the  arti- 
ficial canal  of  Voorne. 

The  same  act  opened  the  Scheldt,  which  had  been  closed  by 
the  peace  of  Westphalia  to  the  Spanish  Netherlands 
in  favor  of  the  Dutch,  and  opened  by  the  French  on 
their  occupation  of  Belgium,  in  1792.  On  the  divulsion  of 

1 Articles  108-117  in  Martens*  Nouv.  Rec.,  ii.,  379. 


The  Scheldt. 


AND  EIGHTS  OVER  TERRITORY. 


§ 62. 

Belgium  from  Holland,  in  1831,  the  treaty  of  separation  again 
provided  for  the  free  navigation  of  this  river.^ 

All  the  other  navigable  streams  of  Europe  were  open  to  the 
inhabitants  on  their  banks,  either  before  the  treaty 

. Ill  .1  The  Danube. 

of  Vienna,  or  by  its  general  rule  above  mentioned, 
with  the  exception  of  tlie  Danube.  By  the  treaty  of  Bucharest, 
in  1812,  and  that  of  Adrianople,  in  1829,  the  commercial  use 
of  this  stream  was  to  pertain  in  common  to  the  subjects  of 
Turkey  and  of  Bussia.  By  the  treaty  of  Paris,  in  1856,  the 
Danube  also  came  within  the  application  of  the  rule  of  the 
treaty  of  Vienna,  to  Avhich  Turkey  was  not  an  original  party. 
This  was  the  last  European  stream,  the  freedom  of  which  was 
to  be  gained  for  commerce.^ 

While  Spain,  after  the  independence  of  the  United  States, 
was  mistress  of  the  lower  waters  of  the  Mississippi, 

. ^ , Mississippi. 

she  was  disposed  to  claim  exclusive  control  over  the 
navigation  near  the  gulf.  But  by  the  treaty  of  San  Lorenzo 

1 Compare  Wheaton’s  History,  282-284,  552  ; Wheaton’s  Elements,  ii.,  4,  § 15. 

2 Eive  articles  of  the  treaty  are  concerned  wiih  the  navigation  of  the  Danube, 
Articles  15-19.  Art.  15  declares  the  freedom  of  the  stream,  according  to  the 
Vienna  act,  as  a part  of  the  public  law  of  Europe  forever,  and  prohibits  tolls  on 
vessels,  and  duty  on  goods,  levied  on  the  simple  account  of  the  navigation.  Art. 
16  appoints  a commission  of  delegates  from  the  five  great  powers  with  Sardinia 
and  Turkey,  to  clear  out  the  mouths  of  the  Danube  ; and,  in  order  to  defray  the 
expenses  of  such  improvements,  fixed  duties,  equal  in  amount  for  all  nations,  may 
be  levied.  This  commission,  by  Article  18,  is  to  finish  its  work  in  two  years,  and 
then  shall  be  pronounced  to  be  dissolved.  Meanwhile,  a permanent  commi.ssion, 
by  Article  17,  is  to  be  appointed,  consisting  of  delegates  of  Austria,  Bavaria,  Tur- 
key, and  Wurtemberg,  to  which  a commission  from  the  three  Danubian  princi- 
palities is  to  be  joined,  who  shall  draw  up  rides  of  navigation  and  fluvial  police, 
remove  remaining  obstacles,  cause  works  necessary  for  the  navigation  to  be  ex- 
ecuted along  the  whole  course  of  the  river,  and  when  the  first  mentioned  commis- 
sion shall  be  dissolved,  shall  see  that  the  mouths  of  the  river  are  kept  in  good 
order.  Art.  19  allows  each  of  the  contracting  powers  .at  all  times  to  station  two 
light  vessels  at  the  mouth  of  the  Danube,  for  the  purpose  of  assuring  the  execu- 
tion of  regulations  settled  by  common  consent.  For  the  act  of  navigation  of  the 
Danube,  growing  out  of  Art.  17,  above  mentioned,  see  Murhard,  A’ouv.  Rec.,  xvi., 
2,  75.  — In  the  treaty  of  Berlin  of  1878,  the  permanent  commission  above  spoken 
of  is  continued.  The  removal  of  obstacles  to  navigation,  caused  by  the  Iron  Gates 
and  cataracts,  is  intrusted  to  Austria-Hungary.  The  commission  can  exerci.se  its 
powers  as  far  as  to  Galatz.  No  ships  of  war  shall  navigate  the  streams  below  the 
Iron  Gates.  Eoumania  and  Servia  have  a seat  in  the  commission. 


84 


STATES’  RIGHT  OF  PROPERTY 


§ 62 


el  Real,  in  1795,  the  use  of  the  sti'eam  with  liberty  to  deposit 
goods  at  and  export  them  from  New  Orleans,  Avas  granted  to 
citizens  of  the  United  States.  Before  this  the  question  of  the 
rights  of  the  parties  had  been  agitated  between  them.  The 
United  States  had  contended  that  there  is  a natural  right  be- 
longing  to  the  inhabitants  on  the  upper  AAmters  of  a stream, 
under  whatever  political  society  the}'-  might  be  found,  to  de- 
scend by  it  to  the  ocean.  It  was  acknowledged,  on  the  part 
of  the  United  States,  that  this  was,  at  the  most,  an  imperfect 
right,  and  yet  the  right  Avas  claimed  to  be  as  real  as  any  otlier, 
hoAA'ever  Avell-defined,  so  that  its  I’efusal  Avould  constitute  an 
injury,  for  Avhich  satisfaction  might  be  demanded.  There 
seems  to  be  a AV'eakness  in  this  argument,  for  by  admitting  the 
right  to  be  air  imperfect  one,  tlie  claim  of  injury  for  not  com- 
plying Avith  it  Avas  cut  off. 

In  1803,  L ouisiana,  Avhich  had  been  ceded  by  Sirain  to 
France  in  1800,  Avas  purchased  of  the  latter  by  the  United 
States,  Avhich  thus  had  the  territorial  jurisdiction  over  all  the 
course  of  the  river.^ 

The  St.  LaAvrence,  after  separating  for  a great  distance  the 
St.  Law-  British  possessions  from  those  of  the  American 
rcncc.  Union,  traverses  British  territory  to  the  sea.  The 
gOA'crnment  of  Groat  Britain,  for  a long  time,  steadily  refused 
to  concede  the  right  of  using  the  loAver  stream  for  the  pur- 
poses of  navigation,  and  the  same  diplomatic  controversy  Avas 
carried  on,  as  in  the  case  of  the  Mississippi,  betw'een  the  right 
according  to  the  strict  law  of  nations,  and  the  claim  on  the 
principles  of  natural  justice.  MeauAvhile,  canals  and  railroads 
having  bound  the  Avestern  part  of  the  Union  to  the  Atlantic 
seaboard,  and  New  York  having  become  a financial  centre  even 
for  the  Canadas,  the  importance  of  the  question  Avas  greatly 
lessened.  By  the  reciprocity  treaty  of  June  5,  1854,  the  navi- 
gation of  the  rUer,  as  AA'ell  as  of  the  canals  in  Canada,  AA’as  at 
length  tlirown  open  to  the  United  States,  on  the  same  condi- 
tions Avhich  are  imposed  on  the  subjects  of  Great  Britain. 
This  prmlege  may  be  revoked  by  the  latter  party  upon  due 
1 Compare  Appeudix  ii.,  under  the  year  1803. 


§ 62.  AND  RIGHTS  OVER  TERRITORY.  85 

notice.  On  their  part  the  United  States  granted  to  British 
subjects  the  free  navigation  of  Lake  Michigan. 

The  vast  system  of  streams  which  find  their  way  to  the  sea 
by  means  of  the  La  Plata  is  open  for  navigation,  not 
only  to  the  inhabitants  of  the  banks,  but  also  in  a system  of 
great  degree  to  strangers.  The  Argentine  Republic 
opened  its  river  navigation  by  treaties  with  France,  Great 
Britain,  and  the  United  States,  in  1853  ; and  by  a treaty  with 
Brazil,  in  1857,  proclaimed  that  the  Parana,  the  Paraguay, 
and  the  Uraguay,  from  their  entrance  into  the  La  Plata  to 
interior  ports,  opened  or  to  be  opened  by  the  riparian  states, 
should  be  accessible  to  tlie  commerce  and  vessels  of  all  nations. 
(Comp.  Calvo,  i.,  344.)  Uruguay,  in  1853,  made  its  rivers 
free  to  all  nations,  and  granted  to  France  and  England  the 
free  navigation  of  the  Paraguay,  as  far  as  to  Assumption. 
Paraguay  made  similar  ti'eaties  with  the  same  powers  in  the 
same  year,  and  in  1859  with  the  United  States.  Bolivia  did 
the  same  the  year  before. 

Brazil,  in  a treaty  of  1851  with  Peru,  agreed  to  apply  to 
the  navigation  of  the  Amazon  the  piinciples  of  the  Congress  of 
Vienna,  relating  to  river  navigation.  But  not  until  a number 
of  years  afterward  was  this  decree  brought  to  fulfillment.  In 
December,  1866,  besides  the  San  Frajicisco  and  the  Tocantins, 
a branch  of  the  Amazon  running  wholly  within  Brazilian  ter- 
ritory, the  Amazon  itself  to  the  frontiers  was  declared  to  be 
open  to  all  nations  from  and  after  September  7,  1867.  Its 
tributaries,  the  Tapajos,  the  Madeira,  and  the  Rio  Grande,  are 
also  opened,  but  not  through  the  upper  part  of  their  coui’se, 
where  only  one  bank  belongs  to  the  Brazilian  empire.  (Comp. 
Calvo,  i.,  345,  346,  and  Dipl.  CoiTesp.  of  the  United  States  for 
1867,  1868,  ii.,  256. 

The  Stikine,  Yukon,  and  Porcupine  rivers  of  Alaska,  rising 
in  British  and  running  into  our  territory,  were  opened  to  both 
nations  by  the  treaty  of  Washington  in  1871. 

Such  have  been  the  advances  in  the  freedom  of  navigation 
during  the  last  forty  years.  There  is  now  scarcely  a river  in 
the  Christian  portions  of  the  world,  the  dwellers  on  whose 


86 


STATES’  RIGHT  OF  PROPERTY,  ETC. 


§ 62. 


upper  waters  have  not  the  right  of  free  communication,  by 
God’s  channels,  with  the  rest  of  mankind.  Whether  the 
motive  which  brought  this  about  has  been  self-interest  or 
sense  of  justice,  an  end  approved  alike  by  justice  and  benev- 
olence has  been  reached,  and  the  world  cannot  fail  to  be  the 
gainer. 


CHAPTER  III. 

RIGHT  OR  CLAEVI  OP  INTERCOURSE.  — RELATIONS  OP  POR- 
EIGNERS  WITHIN  A TERRITORY  OP  A STATE. 

§ 63. 

We  have  already  come  to  the  conclusion  that’ sovereignty 
in  the  strictest  sense  authorizes  a nation  to  decide  intercourse 
upon  what  terms  it  will  have  intercourse  with  for-  how‘^ara 
eigners,  and  even  to  shut  out  all  mankind  from  its 
borders.  (§  25.)  If  a protective  tariff,  or  the  prohibition  of 
certain  articles  is  no  violation  of  rights,  it  is  hard  to  say  how 
far  one  state  may  not  go  in  refusing  to  have  commerce  with 
another.  If  foreigners  may  be  placed  under  surveillance,  or 
may  have  various  rights  of  citizens  refused  to  them,  why  may 
they  not  be  excluded  from  the  territory  ? If  it  be  said  that 
the  destination  of  separate  states,  as  of  separate  families,  is  to 
be  helpful  to  one  another,  that  entire  isolation  is  impossible, 
still  the  amount  of  intercourse  must  be  left  to  the  judgment 
of  the  party  interested  ; and  if  a state,  judging  incorrectly, 
strives  to  live  Avithin  itself  as  much  as  possible,  is  it  to  be 
forced  to  change  its  policy,  any  more  than  to  modify  its  pro- 
tective tariff  ? 

And  yet  some  kind  of  intercourse  of  neighboring  states  is 
so  natural,  that  it  must  have  been  coeval  Avith  their  founda- 
tion, and  Avith  tlie  origin  of  law ; it  is  so  necessary,  that  to 
decline  it,  involves  often  extreme  inhumanity  ; it  is  so  essen- 
tial to  the  progress  of  mankind,  that  unjust  Avars  have  been 
blessings  Avhen  they  opened  nations  to  one  another.  There 
could,  of  course,  be  no  international  laAV  Avithout  it.  The  fol- 


88 


EIGHT  OF  INTEKCOURSE. 


§ 63. 

lowing  maxims  relating  to  tlie  so-called  right,  are,  in  substance, 
laid  dowm  by  Heffter.  (§  33  of  bis  “ Volckerr.,”  5tb  ed.) 

1.  Entire  non-intercourse  shuts  a nation  out  from  being  a 

whatastate  ptudiier  iu  international  law.  — [This,  however,  is 
S^itrespc^ts  true,  if  international  law  is  taken  iu  its  broadest 
intercourse,  fop  to  treat  a nation,  or  its  subjects,  Avben 

these  latter  are  fallen  in  with,  as  having  no  rights,  because 
they  have  no  intercourse  with  us,  is  not  only  inhuman  but 
unjust.] 

2.  No  nation  can,  without  hostility,  cut  off  another  from 
the  use  of  necessaries  not  to  be  obtained  elsewhere.  [But 
necessaries  must  not  be  confounded  with  articles  highly  de- 
sirable.] 

3.  No  state  has  a right  to  cut  another  off  from  the  innocent 
use  of  its  usual  Avays  of  communication  with  a third  state. 
“ The  older  writers  called  this  the  jus  transitus,  or  jus  pas- 
sac/ii  innoxii,  but  disputed  whether  it  is  a perfect  or  imperfect 
right.  Only  necessary  wants  create  a definite  right.  The  re- 
fusal of  something  merely  useful  to  one  party,  to  grant  which 
does  the  other  no  harm,  is  at  most  an  unfi'iendly  procedure. 
INlany,  as  Grotius  (ii.,  2,  § 13),  and  Vattel  (ii.,  §§  123,  132- 
134),  decide,  that  there  is  a right  in  this  case,  but  naturally 
have  to  reseiwe  for  the  owner  the  decision  whether  he  Avill  be 
harmed  or  not  by  parting  with  his  commodities.” 

4.  No  state  can,  Avithout  violation  of  right,  exclude  another 
from  intercourse  Avith  a third  state  against  the  Avill  of  the 
latter. 

5.  In  its  intercourse  Avith  others  every  state  is  bound  to 
truth  and  honesty  [without  Avhich  intercourse  must  be  broken 
up]. 

6.  No  state  in  peace  can  exclude  the  properly  documented 
subjects  of  another  friendly  state,  or  send  them  away  after 
they  have  been  once  admitted,  Avithout  definite  reasons  Avhich 
must  be  submitted  to  the  foreign  government  concerned. 

To  these  Ave  may  add  that 

No  state  can  AvithdraAv  from  intercourse  Avith  others  Avithout 
a violation  of  a right  gained  by  usage. 


RELATIONS  OF  FOREIGNERS,  ETC. 


89 


§ 64. 


No  state  can  treat  with  cruelty,  or  deprive  of  their  property, 
the  subjects  of  another,  whom  some  calamity,  such  as  the  dis- 
tress or  stranding  of  a vessel,  throws  within  its  borders,  with- 
out wrong  and  just  claim  of  redress. 

§ 64. 

Within  these  limits,  intercourse,  whether  through  travelers 
or  merchants,  is  regulated  by  the  free  sovereign  act  what  a state 
of  each  state.  Whether  it  will  have  a passport 
system,  a protective  tariff,  special  supervision  of  strangers ; 
whether  it  will  give  superior  commercial  privileges  to  one  na- 
tion over  another  ; in  short,  whether  it  will  be  fair  and  liberal, 
or  selfish  and  monopolizing,  it  must  decide,  like  any  private 
tradesman  or  master  of  a family,  for  itself.  The  law  of  nations 
does  not  interfere  at  this  point  with  the  will  of  the  individual 
state.i 

It  deserves  to  be  remarked,  however,  that  non-intercourse 
and  restriction  are  fast  disappearing  from  the  commercial  ar- 
rangements of  the  world,  and  that  jealousy  of  foreigners  is 
vanishing  from  the  minds  of  all  the  more  civilized  nations,  in 


^ There  is  a difficulty  in  the  theory  of  international  law,  arising  from  the  weak- 
ness of  the  claim  wliich  one  state  has  to  intercourse  with  another,  compared  with 
the  immense  and  fundamental  importance  of  intcrcour-se  itself.  Tliere  can  be  no 
law  of  nations,  no  civilization,  no  world,  without  it,  but  only  separate  atoms ; and 
yet  we  cannot  punish,  it  is  held,  the  refusal  of  intercourse,  as  a wiong  done  to  us, 
by  force  of  arms,  but  can  only  retaliate  by  similar  conduct.  I have,  in  § 25,  en- 
deavored to  meet  this  by  a parallel  case,  — mariiagc  is  all  important,  yet  for  com- 
mencing it  entire  consent  of  the  parties  is  necessary.  And  yet,  to  put  intercourse 
on  the  ground  of  comity  or  even  of  duty,  fails  to  satisfy  me-  Practically,  we  may 
say  that  nations  will  have  intercourse  by  trade  and  otherwise,  whenever  they  find 
it  10  be  for  their  interest;  but  the  case  of  half-civilized  or  long  secluded  nations, 
which  satisfy  their  own  wants,  and  rather  avoid  than  desire  foreign  articles,  shows 
that  ages  may  elapse  before  views  suggested  by  self-interest  or  suspicion  are 
abandoned.  Shall  we  then  force  them  into  intercourse  I Perha]  s we  may,  if  we 
get  a just  occasion  of  war  with  them  ; but  not  because  they  take  a position  which, 
though  disastrous  for  the  interests  of  mankind,  is  yet  an  exercise  of  sovereignty. 

But  apart  from  this  theoretical  view,  there  are  many  duties,  duties  of  mutual 
help,  incumbent  on  nations  who  hold  intercourse  with  one  another,  which  serve  to 
facilitate  such  intercourse.  Such  are,  aid  to  travelers,  use  of  courts,  and  the  like, 
which  ought  to  be  regarded  as  the  nece.s.sary  means  of  promoting  admitted  inter- 
course, and  therefore  as  obligatory,  when  intercourse  is  once  allowed. 


90 


RIGHT  OF  INTERCOURSE. 


§64. 


the  East  as  well  as  in  the  West.  The  feeling  that  there  is  a 
certain  right  for  lawful  commerce  to  go  everywhere  is  in  ad- 
vance of  the  doctrine  of  strict  right  which  the  law  of  nations 
lays  down.  The  Christian  states,  having  tolerably  free  inter- 
course with  one  another,  and  perceiving  the  vast  benefits  which 
flow  from  it,  as  well  as  being  persuaded  that  in  the  divine  ar- 
rangements of  the  world,  intercourse  is  the  normal  condition 
of  mankind,  have  of  late,  sometimes  under  pretext  of  wrongs 
committed  by  states  less  advanced  in  civilization,  forced  them 
into  the  adoption  of  the  same  rules  of  intercourse,  as  though 
this  Avere  a i-ight  Avhich  could  not  be  withheld.  Recent  trea- 
ties Avith  China  and  Japan  have  opened  these  formerly  se- 
cluded countries  to  commercial  enterprise,  and  even  to  travel ; 
and  the  novel  sight  of  an  ambassador  from  Japan  visiting  our 
country  will  not  be  so  strange  as  the  concessions  of  trade 
which  this  shy  people  has  already  granted.^  It  is  conceded, 
moreover,  that  the  great  roads  of  transit  shall  be  open  to  all 
nations,  not  monopolized  by  one ; and  the  neAver  commercial 
provisions  quite  generally  place  the  parties  to  them  on  the 
footing  of  the  most  favored  nations.  This  freedom  and  spread 
of  intercourse  is,  in  fact,  one  of  the  most  hopeful  signs  in  the 
present  history  of  the  Avorld. 


§ 65. 

There  could  be  no  intercourse  between  nations  if  aliens  and 
Individual  their  property  Avere  not  safe  from  violence,  and  even 
ticd"tVp“ro-'  could  not  demand  the  protection  of  the  state 

tection.  -where  they  reside.  This  protection,  be  it  observed, 
is  territorial  in  its  character,  that  is,  it  is  due  to  them  only 
Avithin  the  territory  of  a state,  on  its  vessels,  and  Avhen  they 
are  Avith  its  ambassadors  ; Avhile  the  protection  of  citizens  or 
subjects,  as  being  parts  or  members  of  the  state,  ceases  at  no 
time  and  in  no  place.  The  obligation  to  treat  foreigners  Avith 
humanity,  and  to  protect  them  Avhen  once  admitted  into  a 

1 Since  this  was  written,  in  18.59,  a Japanese  delegation  has  become  a matter 
of  fact  (2d  ed.),  and  now,  in  1878,  our  intercourse  with  Japan  seems  to  be  on  as 
firm  a basis  as  that  with  any  country  of  Europe, 


§65. 


EELATIONS  OF  FOREIGNEES,  ETC. 


91 


country,  depends  not  on  their  belonging  to  a certain  political 
community  which  has  a function  to  defend  its  members,  nor 
wholly  on  treaty,  but  on  the  essential  rights  of  human  nature. 
Hence,  — 

1.  It  has  been  claimed  with  apparent  justice,  that  aliens 
have  a right  of  asylum.  To  refuse  to  distressed  foreigners,  as 
ship’wrecked  crews,  a temporary  home,  or  to  treat  them  with 
cruelty,  is  a crime.  As  for  the  exile  who  has  no  country,  in- 
ternational law  cannot  insure  his  protection  ; but  most  nations, 
in  ancient  and  modern  times,  that  have  passed  beyond  the  in- 
ferior stages  of  civilization,  have  opened  the  door  to  such  un- 
fortunate persons  ; and  to  shut  them  out,  when  national  safety 
does  not  require  it  has  been  generally  esteemed  a flagitious 
and  evert  an  irreligious  act.  The  case  of  aliens  Avho  have  fled 
from  their  native  country  on  account  of  crime,  will  be  consid- 
ered in  the  sequel. 

2.  The  right  of  innocent  passage  has  already  been  consid- 
ered. It  may  be  claimed  on  stronger  grounds  than  the  right 
of  entering  and  settling  in  a country,  for  the  refusal  may  not 
only  injure  the  aliens  desirous  of  transit,  but  also  the  country 
into  which  they  propose  to  go.  The  right  of  transit  of  armies, 
and  of  entrance  of  armed  ships  into  harbors,  will  be  consid- 
ered by  themselves.  As  their  presence  may  be  dangerous,  to 
refuse  transit  or  admission  in  these  cases  rests  on  grounds  of 
its  o'wn. 

3.  The  right  of  emigration.  Formerly  it  Avas  doubted 
Avhether  an  individual  had  a right  to  quit  his  country  and  set- 
tle elsewhere,  without  leave  from  his  government ; and  in  some 
countries  he  Avho  did  go  had  to  sacrifice  a part  of  his  prop- 
erty.^ At  present  such  a idght  is  very  generally  conceded, 
under  certain  limitations.  “ The  right  of  emigration,”  says 
Heffter,  “ is  inalienable  : only  self-imposed  or  unfulfilled  obli- 
gations can  restrict  it.”  The  relation  of  the  subject  to  the 

^ By  the  jus  detractils,  droit  de  detraction,  property  to  whicli  strangers  out  of  the 
country  succeeded  was  taxed.  By  an  analogous  tax,  as  the  cjahelle  d’emkjration, 
those  who  left  a country  were  amerced  in  part  of  their  goods,  immovable  or  mov- 
able. Such  odious  rights,  says  De  Martens  (i.,  § 90),  although  existing  still,  are 
very  generally  abolished. 


92  RIGHT  OF  INTERCOURSE.  § C5. 

sovereign  is  a voluntary  one,  to  be  tenninated  by  emigration. 
But  a state  is  not  bound  to  allow  the  departure  of  its  subjects, 
until  all  jJreexisting  laAvful  obligations  to  the  state  have  been 
satisfied.  Notice,  therefore,  may  be  required  of  an  intent  to 
emigrate,  and  security  be  demanded  for  the  satisfaction  of 
back-standing  obligations,  before  the  person  in  question  is 
alloAved  to  leave  the  country.^  De  Martens  Avrites  to  this 
effect.^  “ It  belongs  to  universal  and  positive  public  laAV  to 
determine  hoAv  far  the  state  is  authorized  to  restrict  or  pre- 
A'ent  the  emigration  of  the  natives  of  a country.  Although 
the  bond  Avhich  attaches  a subject  to  the  state  of  his  birth  or 
his  adoption  be  not  indissoluble,  every  state  has  a right  to  be 
informed  beforehand  of  the  design  of  one  of  its  subjects  to 
expatriate  himself,  and  to  examine  Avhether  by  reason  of  crime 
or  debt,  or  of  his  engagements  not  yet  fulfilled  toAvards  the 
state,  it  is  authorized  to  retain  him  longer.  These  cases  ex- 
cepted, it  is  no  more  justified  in  prohibiting  him  from  emigrat- 
ing, than  it  AAmuld  be  in  prohibiting  foreign  sojourners  from 
doing  the  same.  These  principles  liave  ahvays  been  folloAved 
in  Germany.  They  have  been  sanctioned  even  by  the  fed- 
eral pact  of  the  German  confederation,  as  far  as  relates  to  em- 
igration from  the  territory  of  one  member  of  the  confederation 
to  that  of  another.” 

§66. 

Foreigners  admitted  into  a country  are  subject  to  its  laws, 
unless  the  laAvs  themseNes  uive  them,  in  a greater 

nclationof  . r,Ai  . . i i n 

aliens  to  the  or  less  degree,  exemption.  1 Ins  is  rarely  done,  and 
their’ con-  the  general  practice  of  all  Christian  states  treats 
foreigners  — except  some  especial  classes  of  them  — 
as  transient  subjects  of  the  state  Avhere  they  reside,  or  on 
Avhose  ships  they  sail  over  the  high  sea.  They  are  held  to 
obedience  to  its  laws,  and  punished  for  disobeying  them,  nor 
is  it  usual  to  mitigate  their  punishment  on  account  of  their 
ignorance  of  the  laAV  of  the  land.  They  are  again,  as  Ave  have 
seen,  entitled  to  protection,  and  failure  to  secure  this,  or  any 

1 Ileffter,  §§  l.'j,  33. 

2 Precis,  etc.,  Paris  ed.  of  1858,  § 91. 


§67. 


RELATIONS  OF  FOREIGNERS,  ETC. 


93 


act  of  oppression  may  be  a ground  of  complaint,  of  retorsion, 
or  even  of  war,  on  tlie  part  of  their  native  country.  On  the 
other  hand,  the  law  of  the  land  may  without  injustice  place 
them  in  an  inferior  position  to  the  native-born  subject.  Thus 
they  may  be  obliged  to  pay  a residence  tax,  may  be  restricted 
as  to  the  power  of  holding  land,  may  have  no  political  rights, 
may  be  obliged  to  give  security  in  suits  where  the  native  is 
not,  may  be  forbidden  to  enter  into  certain  callings,  may  be 
subjected  to  special  police  regulations,  without  any  ground  for 
complaint  that  they  are  oppressed.  But  most  restrictions 
upon  foreigners  have  disappeared  with  the  advance  of  humane 
feeling  and  the  increasing  frequency  of  intercourse  between 
nations ; until  they  are  in  almost  all  Christian  countries,  in  all 
rights  excepting  political,  nearly  on  a level  Avith  native-born 
persons.  In  fact,  if  foreigners  are  admitted  to  establish  them- 
selves in  a country,  it  is  but  justice  that  all  private  rights 
should  be  accorded  to  them.  Thus  the  courts  of  their  domicil 
ought  to  be  as  open  to  them  as  to  the  native-born  citizen,  for 
collecting  debts  and  redressing  injuries. 

§67. 

The  progress  of  humanity  in  the  treatment  of  foreigners, 
may  be  shoAvn  by  the  folloAving  brief  sketch,  includ- 

^ , Progress  of 

ins:  only  Greece  and  Rome,  and  the  Christian  states,  humanity 

O •/  ' Qf 

In  Greece  different  policies  prevailed.  Aristocratic  comity  to- 

A ^ Wfirds 

and  agricultural  states  Avere  in  general  jealous  of  aiien.s,  nius. 
strangers,  democratic  and  commercial  ones  A’ieAved 
them  Avith  favor.  Sparta  Avas  called  ex^jodAros,  as  excluding 
them  and  Avatching  them  Avhile  in  the  territory.  At  Athens, 
Avhere  the  policy  Avas  humane  and  liberal,  domiciled  strangers, 
— metoeci,  — were  subject  to  a small  stranger’s  tax,  had 
heavier  pecuniary  burdens  than  the  native  citizen,  were  re- 
quired to  seiwe  in  the  army  and  navy,  and  needed  a patron  for 
the  transaction  of  legal  business.  Their  great  numbers,  equal 
to  one  half  of  the  citizens,  show  that  they  prospered  under 
this  policy,  Avhich  Avas  extended  to  barbarians  as  Avell  as  to 
Greeks.  Sometimes  they  attained,  by  A'ote  of  the  community, 


94 


RIGHT  OF  INTERCOURSE. 


§67. 


to  full  citizenship.  A special  hut  smaller  class  of  foreigners 
— the  la-nreXet?,  — had  a status  more  nearly  like  that  of  the 
citizen  than  the  ordinary  metoeci.  In  many  states  of  Greece, 
individual  aliens,  or  whole  communities,  received  by  vote  some 
of  the  most  important  civic  rights,  as  those  of  intermarriage, 
of  holding  real  estate  within  the  territory,  and  of  immunity 
from  taxation  (^iTVLyajxLa,  lyKT-qui’;,  and  dre'/Veia). 

In  Rome,  foreigners  enjoyed  those  rights  which  belonged  to 
the  jus  gentium  ; they  could  acquire  and  dispose  of  propei’ty, 
could  sue  in  the  courts,  and  had  an  especial  magistrate  to  at- 
tend to  their  cases  at  law,  but  could  make  no  testament,  nor 
had  they  the  connubium  and  commercium  of  Roman  citizens. 

In  the  Germanic  states,  after  the  fall  of  the  Roman  empire, 
foreigners  at  first  Avere  Avithout  rights,  and  a prey  to  violence, 
as  having  no  share  in  political  bodies.  Hence  they  needed 
and  fell  under  the  protection  of  the  seigneur,  or  of  his  bailiff. 
In  France,  especially,  the  seigneur,  as  the  price  of  his  pi’otec- 
tion,  levied  a poll-tax  on  the  stranger,  and  arrogated  the  right 
to  inherit  his  goods,  Avhen  he  had  no  natural  heirs  Avithin  the 
district.  Ea’^cii  the  capacity  of  making  a testament  Avas  taken 
aAvay  from  him,  and  sometimes  even  inland  heirs  Avere  ex- 
cluded from  the  succession.  Some  lords  forbade  strangers  to 
leave  the  district  after  a certain  length  of  residence,  and  to 
marry  out  of  it.  And  sometimes  these  rights  Avere  exercised 
over  Frenchmen  from  other  juristic  territories  (chatellenies), 
under  the  same  suzerains.  The  name  by  Avhich  this  right 
or  aggregate  of  rights  Avent,  is  jus  alhinagii,  droit  d'aubaine, 
Avhich  Mr.  Dietz,  the  highest  authority  in  Romanic  philology, 
derives  not  from  Albanus,  a Scotchman,  nor  from  alibi  natus, 
but  from  alibi  simply,  formed  from  the  adA'’erb,  after  the  anal- 
ogy of  iprocliain^  lointain. 

At  length  the  droit  d’aubaine  fell  to  the  king  alone,  and 
noAV  consisted  first  in  an  extraordinary  tax  levied  upon  stran- 
gers on  certain  occasions  ; and  secondly,  in  the  king’s  becom- 
ing the  heir  of  strangers  Avho  had  left  no  heirs  of  their  body 
within  the  kingdom.  IMany  private  persons  Avere  exempted 
from  the  operation  of  this  right  by  special  privilege,  and  whole 


EIGHTS  OF  FOEEIGNERS,  ETC. 


95 


§68.  , 

nations,  as  the  United  States  in  1778,  by  treaty.  Abolished 
by  the  constituent  assembly  in  1790,  and  reestablished  by  the 
Code  Napoleon  on  the  principle  of  reciprocity,  it  again  disap- 
peared anew  from  French  legislation  in  1819,  when  a law  gave 
to  foreigners  the  right  of  succession  in  France  to  the  same  ex- 
tent with  native-born  Frenchmen.^ 


§ 68. 

Certain  classes  of  aliens  are,  by  the  comity  of  nations,  ex- 
empted in  a greater  or  less  degree  from  the  control  Extemto- 
of  the  laws,  in  the  land  of  their  temporary  sojourn. 

They  are  conceived  of  as  bringing  their  native  laws  with  them 
out  of  their  native  territory,  and  the  name  given  to  the  fiction 
of  law,  — for  it  seems  there  must  be  a fiction  of  law  to  explain 
a very  simple  fact,  — is  exterritoriality.  This  privilege  is  con- 
ceded especially  (1)  to  sovereigns  traveling  abroad  with  their 
trains  ; (2)  to  ambassadors,  their  suite,  familj^,  and  servants ; 
and  (3)  to  the  officers  and  crews  of  public  armed  vessels  in 
foreign  ports,  and  to  armies  in  their  permitted  transit  through 
foreign  territory. 

This  privilege  is  not  constant,  nor  unlimited.  The  right  of 
entrance  into  foreign  tenltory,  on  which  the  privilege 

. ~ TT.  . 1.1?  Limits  of  ex- 

is  founded,  is  one  dependent  on  a comity  which  cir-  temtoriai- 
cumstances  may  abridge.  Thus,  for  reasons  of  state, 
a sovereign  may  have  the  permission  refused  to  him  to  set  foot 
on  a foreign  soil,  and  much  more  is  the  like  true  of  ships  and 
armies.  When  a sovereign  is  abroad,  his  person  is  Astosove- 
inviolate  and  exempt  from  the  laws  of  the  land,  but 
he  may  not  exercise  acts  of  sovereignty,  not  accorded  to  him 
by  his  native  laws,  as,  for  instance,  that  of  punishing  persons 
in  his  suite  capitally,  — as  Queen  Christina  of  Sweden  put  to 
death  one  of  her  household  in  France, — nor  acts  hazardous 
to  the  safety  or  the  sovereignty  of  the  state  where  he  is  so- 
journing, nor,  perhaps,  acts  which  the  sovereign  of  the  country 
himself  cannot  exercise.  Neither  then  nor  at  any  time  will 

1 See,  especially,  Warnkouig,  Frumos.  Rechtsgesch.,  ii.,  180-188,  471,  and  Da 
Martens,  i.,  § 90. 


96 


EIGHT  OF  INTERCOUESE. 


§ 68. 


Armies  in 
transit. 


this  right  apply,  so  as  to  exempt  real  or  other  property,  'which 
he  may  have  in  the  foreign  counti’y,  from  its  local  laws,  with 
the  exception  of  such  effects  as  he  may  have  brought  with 
him.^  For  the  concession  of  the  same  right  to  ambassadors,  we 
refer  to  the  chapter  relating  to  those  functionaries.  Ships  of 
Ships  of  war,  and  vessels  chartered  to  convey  a sovereign  or 

war.  p-g  representative,  are  peculiar  in  this  respect,  that 

the  vessel  is  regarded  in  a certain  sense  to  be  part  of  alien 
territory  moved  into  the  harbors  of  another  state  (§  68). 
The  crews  on  board  the  public  vessels  are  under  their  native 
laws,  but  on  shore,  if  guilty  of  acts  of  aggression  or  hostility, 
can  be  opposed  by  force  and  arrested.  So  also  the  vessel  it- 
self must  pay  respect  to  the  port  and  health  laws.^  Crimes 
committed  on  shore  expose  persons  belonging  to  such  vessels 
not  only  to  complaint  before  their  own  sovereign,  but 
also  to  arrest  and  trial.  Of  armies  in  transit,  when 
such  a right  is  conceded,  Vattel  says  (iii.,  8,  § 130),  that  “ the 
grant  of  passage  includes  that  of  every  particular  thing  con- 
nected with  the  passage  of  troops,  and  of  things  without  which 
it  Avould  not  be  practicable  ; such  as  the  liberty  of  carrying 
Avhatever  may  be  necessary  to  an  army  ; that  of  exercising 
military  discipline  on  the  officers  and  soldiers  ; and  that  of 
buying  at  a reasonable  rate  anything  an  army  may  Avant,  un- 
less a fear  of  scarcity  renders  an  exception  necessar}^,  Avhen  the 
army  must  carry  Avith  them  their  provisions.”  If  Ave  are  not 
deceh^ed,  crimes  committed  along  the  line  of  march,  away  from 
the  body  of  the  army,  as  pilfering  and  marauding,  authorize 
arrest  by  the  magistrates  of  the  country,  and  a demand  at 
least  that  the  commanding  officers  shall  bring  such  crimes  to 
a speedy  trial.  When  the  transit  of  troops  is  alloAved,  it  is 
apt  to  be  specially  guarded  by  treaties. 

The  creAVS  of  commercial  vessels  in  foreign  ports  have  in 
general  no  such  exemption  from  the  laAV  of  the  place.  By  the 

1 He  is  not  however  bound  to  answer  to  a suit  brought  by  a subject  of  another 
country,  unless  he  is  there  a subject  himself,  — as  the  King  of  Hanover  was  in 
Enghnnd  not  long  ago.  When  a sovereign  enters  the  courts  of  another  country, 
he  has  no  special  privileges.  (Cairo,  i , 636,  638.)  T.  S. 

2 Ortolan,  i.,  218. 


RELATIONS  OF  FOREIGNERS,  ETC. 


97 


§ 69. 


law  of  France,  however,  crimes  committed  on  board  of  foreign 
vessels  in  Frencli  ports,  where  none  hnt  the  crew  are 

^ . . . Crews  of 

concerned,  are  not  considered  as  pertaining  to  the  commercial 

• n ry  ^ t ^ cc  Tcssels  in 

lunscliction  ot  the  courts  of  France,  wlnle  onenses  French 

« ports 

committed  on  the  shore  and  against  others  than  the 
vessels’  crews  come  before  the  tribunals  of  the  kingdom. 
This  is  a compromise  between  territorial  sovereignty  and  the 
principle  or  fiction  that  the  ship  is  a part  of  the  domain  of  its 
own  nation,  wherever  found. 

Vessels  driven  into  foreign  waters  against  the  will  vessels 

° g driven  into 

of  the  master  are  exempted  from  ordinary  charges  foreign  har- 

. . 1 n ^ 1 1 1 • 1 T 1 tors  out  of 

and  jurisdiction,  and  allowed  to  depart  unhindered.^  their  course. 


§ 69. 

Exemption  from  local  jurisdiction  has  been  granted  to  for- 
eigners from  Christian  lands,  resident  in  certain 

, .....  Exemptions 

Oriental  countries  ; the  reasons  for  which  he  in  the  to  foreigners 

...  in  certain 

fact,  that  the  laws  and  usages  there  prevailing  are  Eastern 

. ...  T 1-  1 countries. 

quite  unlike  those  of  Christendom,  and  in  the  nat- 
ural suspicion  of  Christian  states,  that  justice  will  not  be  ad- 
ministered by  the  native  courts,  which  leads  them  to  obtain 
special  privileges  for  their  subjects.  The  arrangements  for 
this  purpose  are  contained  in  treaties  which  have  a general 
resemblance  to  one  another.  In  Turkey,  and  some  other  Mo- 
hammedan countries,  foreigners  form  communities  under  their 
consuls,  who  exercise  over  them  a jurisdiction,  both  in  civil 
and  criminal  matters,  which  excludes  that  of  the  territorial 
courts.  In  civil  cases  an  appeal  lies  to  the  courts  at  home, 
and  in  criminal,  beyond  the  imposition  of  fines,  the  consul  has 
power  only  to  prepare  a case  for  trial  before  the  same  tribu- 
nals.2  But  the  extent  of  power  given  to  its  functionaries  each 
nation  determines  for  itself.® 


1 Compare  Heffter,  § 79,  and  Webster’s  Letter  to  Ashburton,  respecting  the 
Creole,  Works,  vi.,  303-313. 

2 Wheaton,  Elements,  ii.,  2,  § 11. 

® When  any  of  tliese  countries  changes  its  system  of  laws,  as  Algiers  did  at  the 
French  conquest,  the  consular  functions  would  cease  as  a matter  of  course.  Nor 
7 


98 


RIGHT  OF  INTERCOURSE. 


§ 69. 


The  same  system  in  general  has  been  followed  in  the  trea- 
ties of  Christian  states  with  China,  of  which  that  made  by  the 
United  States  in  1844,  and  spoken  of  below  under  the  title  of 
Consuls,  may  serve  as  an  example.  Quite  recently  the  same 
exterritorial  jurisdiction  has  been  granted  by  the  government 
of  Japan  to  functionaries  of  the  United  States  resident  in  that 
country.^ 

§ 70. 


Foreign  residents  in  most  Christian  countries  can  sustain, 
in  the  course  of  time,  a closer  or  more  distant  rela- 

Aliens  losing  . 

in  part  or  tioii  to  the  bodv  politic  witliiii  wliose  boi’ders  they 

entirely  the  . *'■*■.  ...  . . 

character  o£  Jive.  They  caii  acquire  nationality,  or  in  other  words, 
become  naturalized,  or  they  may  remain  in  the  ter- 
ritory as  domiciliated  strangers. 

Naturalization  implies  the  renunciation  of  a former  nation- 
Naturaiiza-  aiid  the  fact  of  entrance  into  a similar  relation 

towards  a new  body  politic.  It  is  possible  for  a per- 
son, without  renouncing  his  country,  or  expatriating  himself, 


do  Christian  states  grant  reciprocal  jtrivileges  to  the  functionaries  of  these  coun- 
tries. — T.  S.,  citing  a paper  of  D.  D.  Field. 

1 An  act  was  passed  by  Congress,  in  1860,  to  carry  into  effect  certain  stipula- 
tions in  the  treaties  between  the  United  States  and  China,  Japan,  Siam,  Turkey, 
Persia,  Tripoli,  Tunis,  Morocco,  and  Muscat,  and  by  which  our  laws  in  criminal 
and  civil  matters  are  extended  over  American  citizens  in  those  countries  ; also  the 
common  law,  including  equity  and  admiralty.  Ministers  and  consuls  have  full 
judicial  powers,  and  can  punish  by  fine  or  imprisonment,  or  both,  at  discretion. 
The  President  is  authorized  to  appoint  seven  Marshals  to  execute  processes,  one 
in  Japan,  four  in  China,  one  in  Siam,  and  one  in  Turkey.  Murder  and  insurrec- 
tion, or  rebellion  against  the  government  of  either  of  said  countries,  with  intent 
to  subvert  the  same,  are  made  capital  offenses,  punishable  with  death.  Our  con- 
suls or  commercial  agents  on  islands  not  inhabited  by  any  civilized  people,  or 
whom  we  have  not  recognized  by  treaty,  are  also  empowered  to  exercise  judicial 
functions  over  American  citizens.  By  the  treaty  with  Japan,  signed  at  Yedo, 
•July  29,  1858,  offenses  shall  be  tried  in  the  offender’s  court  and  according  to  the 
law  of  his  country,  and  the  courts  of  each  nation,  that  is,  the  consular  and  the 
Japanese,  are  open  to  creditors  belonging  to  the  other  nationality.  In  the  same 
way,  by  the  treaty  of  1858  with  China,  the  offender’s  court  and  law  decide  when 
a criminal  act  is  committed  ; but  where  both  parties  are  citizens  of  the  United 
States,  our  judges  (consuls  or  others  thereto  authorized)  have  jurisdiction.  AVhen 
one  is  a citizen  of  the  United  States,  and  the  other  pertains  to  some  other  foreign 
nationality,  the  judicial  arrangements  are  regulated  by  treaty  between  the  United 
States  and  the  sovereign. 


§70. 


RELATIONS  OF  FOREIGNERS,  ETC. 


99 


j to  have  the  privileges  of  citizenship  in  a second  country,  al- 
J though  he  cannot  sustain  the  same  obligations  to  both.  Is  it 

c also  possible  for  him  to  renounce  his  country,  and  become  a 

citizen  of  another,  so  far  as  even  to  be  bound,  like  his  felloAv- 
citizens,  to  take  up  arms  against  the  land  of  his  birth  ? Most 
nations  hold  that  this  transfer  of  allegiance  is  possible,  and 
embody  the  conditions  of  it  in  their  naturalization  laws.  Even 
England,  which  long  retained  the  doctrine  of  indelible  allegi- 
ance, admitted  strangers  to  citizenship  (or  to  a less  privileged 
I relation)  by  special  act  or  grant.  (§  70,  infrai)  But  inas- 
much as  the  conditions  of  naturalization  vary,  there  may  arise 
here  a conflict  of  laws,  and  two  nations  may  at  once  claim  the 
same  man  as  sustaining  to  them  the  obligations  of  a citizen. 
International  law  has  not  undertaken  to  decide  in  such  con- 
flicts, and  the  question  is  scarcely  one  of  practical  importance, 
except  when  the  naturalized  person  returns  to  his  native  coun- 
ti'y,  and  when  he  is  caught  fighting  against  her.  There  is  no 
doubt  that  a state,  having  undertaken  to  adopt  a stranger,  is 
bound  to  protect  him  like  any  other  citizen.  Should  he  return 
to  his  native  soil,  and  be  apprehended  for  the  non-fulfillment 
of  civic  duties  which  devolved  on  him  before  his  emigration, 
there  would  be  no  ground  of  complaint  on  that  score.  Should 
he  be  required  anew  to  enter  into  the  status  of  a citizen,  in 
such  sort  as  to  renounce  his  allegiance  to  his  new  country, 
this  force  must  be  regarded  by  his  adopted  country,  on  her 
theory  of  civic  rights,  as  a wrong  calling  for  redress.  Should 
! he  be  subjected  to  ill-treatment  Avhen  a captive  in  war,  on  the 
' ground  of  fighting  against  his  native  country,  here,  too,  there 
Avould  be  reason  for  retaliation.  In  short,  the  nation  Avhich 
has  naturalized,  and  thus  bound  itself  to  protect  a person,  can- 
not abandon  its  obligation,  on  account  of  viervs  of  civic  obliga- 
tions which  another  nation  may  entertain. 

Whether  anything  short  of  completed  naturalization  can 
sunder  the  tie  to  the  place  of  origin,  may  be  a question.  It 
i is  held  that  a domiciled  stranger  may  not  with  impunity  be 
found  in  arms  against  his  native  country.^  For  the  effects  of 
1 Keat,  i.,  7G,  Lect.  It 


100  RIGHT  OF  INTERCOURSE.  § 70. 

incipient  naturalization  compare  the  case  of  Koszta  in  the 
appendix  to  this  chapter.  The  English  practice  in  the  earlier 
part  of  this  century,  of  impressing  seamen  from  neutral  ves- 
sels, on  the  ground  that  they  owed  allegiance  to  their  native 
sovereign,  was  objectionable,  Avhether  this  doctrine  of  inalien- 
able allegiance  stands  or  falls  ; for  to  seize  native-born  sailors 
on  foreign  vessels,  upon  the  sea,  is  to  act  the  sovereign  beyond 
one’s  own  territory ; it  is  to  execute  one’s  own  laAvs  Avhere  the 
laws  of  another  sovereign  are  supreme.  (Comp.  § 221.) 

We  add  here  the  regulations  of  some  of  the  more  impor- 
tant countries  in  regard  to  naturalization.^ 

Rules  of  ^ 

several  na-  In  England  formerly  an  alien  could  cease  to  be 
natuvaiiza-  sucli  oiily  111  oiie  of  tivo  Avays,  the  first  of  Avllich  Avas 
by  letters-patent  of  the  croAvn  constituting  him  a 
denizen^  in  Avhich  status  he  could  purchase  and  devise  lands, 
but  received  no  capacity  of  holding  political  trusts,  and  Avas 
not  altogether  freed  from  burdens  resting  on  aliens.  The 
second  Avay  Avas  naturalization  by  act  of  Parliament,  Avhich 
placed  the  person  concerned  in  a slightly  superior  status  to 
that  of  a denizen,  yet  did  not  qualify  him  to  hold  political 
trusts.  A statute  of  1844  (7  and  8 Viet.,  ch.  66),  went  fur- 
ther by  alloAving  a secretary  of  state  to  confer  on  an  alien, 
petitioning  for  naturalization,  all  the  rights  and  capacities  of 
a natural-born  subject,  except  those  of  becoming  a member  of 
the  Privy  Council  or  of  either  house  of  Parliament.  In  1870 
(33  Viet.,  ch.  14),  a iicav  and  very  important  statute  gave  to 
the  alien  all  desirable  facilities  of  becoming  a British  subject, 
and  to  the  British  subject  the  poAver  of  renouncing  his  nation- 
ality. By  this  statute  an  alien,  after  five  years’  residence  in 
the  United  Kingdom,  or  seiwice  of  the  croAvn,  Avho  intends,  if 
naturalized,  to  continue  his  residence  or  service,  may  apply  to 
one  of  the  principal  secretaries  of  state  for  a certificate  of  nat- 
uralization. When  thus  naturalized,  he  becomes  entitled  to 
all  the  political  rights  and  poAvers  of  a British  subject,  and  is 
placed  under  all  the  obligations  of  a subject,  Avith  this  qualifi- 
cation : that  Avithin  the  limits  of  the  state  to  AAdiich  he  for- 
1 Foelix,  Droit  Intern.  Priv^,  3d  ed.,  i.,  81-100. 


EELATIONS  OF  FOEEIGNEES,  ETC. 


101 


§ 70. 


merly  belonged  he  shall  not  be  deemed  to  be  a British  sub- 
ject, unless  he  has  ceased  to  be  a subject  of  that  state  in  pur- 
suance of  its  laws  or  of  a treaty  to  that  effect.  It  is  provided 
also  that  aliens  naturalized  according  to  the  statute  of  1844 
may  partake  of  the  advantages  of  this  new  mode  of  naturali- 
zation. On  the  other  hand,  any  British  subject,  naturalized 
in  any  foreign  state,  is  deemed  to  have  ceased  to  be  a subject, 
and  is  regarded  as  an  alien ; and  a British  subject  who  has 
thus  become  an  alien  can  be  readmitted  to  British  nationality 
on  the  same  terms  with  other  aliens,  but  Avith  the  qualification 
before  noticed.  Another  article  determines  the  status  of  mar- 
ried women  and  infant  children. 

In  August  of  the  same  year,  and  in  conformity  with  this 
statute,  a convention  relative  to  naturalization  Avas  concluded 
betAveen  Great  Britain  and  the  United  States.  Subjects  or  cit- 
izens of  either  state  may  be  naturalized  in  the  other  according 
to  its  laws,  and  after  this  they  cease  to  retain  their  old  na- 
tional status  ; but  may  regain  it  like  other  aliens,  and  the  same 
alternation  of  nationality  may  be  renewed  over  and  over.^ 

In  France  a stranger  became  a citizen  by  the  Const,  of  22d 
Frimaire,  year  VIII.,  Avhen  after  reaching  the  age  of  twenty- 
one,  obtaining  liberty  of  domicil,  and  declaring  his  intention 
to  remain  in  France,  he  had  resided  there  for  ten  consecutive 
years.  His  naturalization  was  also  to  be  pronounced  to  be  in 
force  by  the  head  of  the  state.  In  addition  to  this  the  child 
of  foreign  parents,  born  on  French  soil,  may  claim  the  quality 
of  a Frenchman  in  the  year  succeeding  his  majority.  Natu- 
ralization in  a foreign  country  involves  the  loss  of  French  citi- 
zenship.2 

In  Prussia  an  appointment  to  a public  function  brought  the 
right  of  citizenship  with  it,  and  the  same  was  the  case  in  Aus- 

1 See  the  law  and  the  treaty  in  Phillimore,  Append,  iv.  of  vol.  i.,  and  the  treaty 
in  the  list  of  treaties  of  the  United  States  (1871,  p.  405). 

2 Deman^eat  on  Fcelix,  i.,  ?8,  gives  the  then  latest  legislation  on  this  subject. 
The  term  of  ten  years  can  be  reduced  to  one  in  favor  of  inventors  and  others  who 
confer  important  services  on  France.  By  a law  of  June  29,  1867,  any  foreigner, 
twenty-one  years  of  age,  to  whom  permission  should  he  given  to  be  domiciled  in 
France,  could  enjoy  all  the  rights  of  a French  citizen  after  three  years. 


102 


RIGHT  OF  INTERCOURSE. 


§70 


tria,  and  perhaps  elsewhere.  In  Prussia  the  higher  adminis- 
trative authorities  had  the  right  to  naturalize  strangers  ot 
good  character  who  possess  the  means  of  subsistence,  except- 
ing  Jews,  subjects  of  other  members  of  the  Germanic  confed- 
eracy, and  persons  incapable  of  taking  care  of  themselves. 

In  Austria  leave  to  exercise  a profession,  ten  years  of  resi- 
dence, and  the  consent  of  the  authorities,  were  prerequisites  to 
naturalization. 

In  both  of  the  last-named  states  nationality  is  shaken  off 
by  emigration,  for  which  permission  has  been  obtained  from 
the  government. 

In  Russia  a simple  oath  of  allegiance  to  the  emperor  for- 
merly naturalized,  but  naturalized  strangers  can  at  any  time 
renounce  their  national  status  and  return  to  their  own  country. 
Since  1864,  a foreigner  must  be  domiciled  five  years  before  he 
can  apply  for  naturalization. 

In  the  United  States,  the  person  wishing  to  be  naturalized, 
must  make  a declaration  on  oath,  before  certain  judicial  per- 
sons, of  an  intent  to  become  a citizen  and  to  renounce  his 
former  nationality,  two  years  at  least  after  which,  and  after 
five  years  of  residence,  he  may  become  a citizen  in  full  of  the 
United  States,  although  not  necessarily  a citizen  of  any  State 
in  the  Union. 

Between  1868  and  1870  quite  a number  of  conventions  were 
concluded  between  the  United  States  and  other  powers,  espe- 
cially of  Germany,  all  of  them  made  after  nearly  the  same 
pattern.  Such  are  the  treaties  with  the  North  German  Union, 
Baden,  Bavaria,  Hesse,  Wiirtemberg,  with  Belgium,  Sweden, 
and  Austria.  The  common  term  of  uninterrupted  residence 
is  five  years,  before  naturalization  can  be  granted.  The  dec- 
laration of  an  intention  to  become  a citizen  has  of  itself  no 
effect  on  the  &tatus  of  the  person  making  it.  If  a natural- 
ized person  returns  to  the  country  where  he  first  lived,  he 
“ remains  liable  to  trial  and  punishment  for  an  action  pun- 
ishable by  the  laws  of  his  original  country,  and  committed 
before  his  emigration,  saving  always  the  limitation  established 
by  its  laws  or  any  other  remission  of  liability  to  punishment.’ 


171- 


relations  OF  FOREIGNERS,  ETC. 


103 


In  one  or  two  of  these  conventions  (as  in  those  with  Aus- 
tria and  Baden),  the  violations  of  military  law  incurred  by 
emigration,  and  which  still  hung  over  the  emigrant  on  his  re- 
turn after  naturalization  in  the  United  States,  are  distinctly 
specified.  These  conventions  put  an  end,  probably,  to  all 
danger  of  carrying  into  effect  the  unwise  reprisals  authorized 
by  our  act  of  naturalization  of  1868,  wdiich  were  intended  to 
protect  naturalized  citizens  of  the  United  States,  while  visit- 
ing their  original  country. 

In  many  countries,  a woman  on  her  marriage  to  a native 
acquires  nationality,  and  loses  it  on  her  marriage  to  a for- 
eigner. In  the  laws  of  some  countries,  wives  and  minor  chil- 
dren follow,  as  a thing  of  course,  the  status  of  the  head  of 
the  family,  and  the  son  of  a foreign  resident  born  and  brought 
up  on  the  soil  has  peculiar  facilities  of  naturalization. 

§71. 

Domicil  being  more  a legal  than  a political  term,  has  had 
nearly  the  same,  although  a somewhat  vague  defini-  pomijii 
tion,  always  and  everywhere.  A definition  of  Ro- 
man  law  is  expressed  in  these  terms  : “ In  eo  loco  singulos 
habere  domicilium  non  ambigitur,  ubi  quis  larem  rerumque  ac 
fortiinarum  suarum  summam  const! tuit,  unde  rursus  non  sit 
discessurus  si  nihil  avocat,  unde  qunm  profectus  est  peregrinari 
videtur,  quo  si  rediit  peregrinari  jam  destitit.”  ^ According 
to  Savigny,2  “ it  is  the  place  which  a man  has  freely  chosen 
for  his  durable  abode,  and  thereby  also  as  the  centre  of  his  ju- 
ral relations  and  of  his  business.”  But  in  the  case  of  a minor, 
Avho  can  exercise  no  jural  choice  in  the  matter,  his  domicil  is 
held  to  be  that  of  his  father.®  The  domicil,  says  Vattel,  “is 
the  habitation  fixed  in  any  place,  with  the  intention  of  al- 
ways staying  there.  A man  then  does  not  establish  his 
domicil  in  any  place  unless  he  luakes  sufficiently  known  his 
intention  of  fixing  himself  there,  either  tacitly  or  by  an  ex- 
press declaration.  And  yet,  this  declaration  is  no  reason 

1 C.  J.  C.,  10,  39.  L.  7,  De  Incolis. 

* System  d.  h.  ROin.  Reckts,  viii.,  58.  * FceUx,  i.,  54. 


104  RIGHT  OF  INTERCOURSE.  § 71. 

why,  if  he  afterwards  changes  his  mind,  he  may  not  remove 
to  another  domicil.  In  this  sense,  he  who  stops,  even  for  a long 
time,  in  a place,  for  the  management  of  his  affairs,  has  only  a 
simple  habitation  there,  but  no  domicil.”  (i.,  § 218.)  With 
the  first  part  of  this  definition  Story  justly  finds  fault:  few 
foreigners  have  the  intention  of  always  staying  abroad  ; few, 
therefore,  could  have  any  domicil.  “ It  would  be  more  cor- 
rect to  say  that  that  place  is  properly  the  domicil  of  a person 
in  which  his  habitation  is  fixed  without  any  present  intention 
of  removing  therefrom.”  ^ “ Two  things  must  concur,”  says 

the  same  eminent  jurist,  “to  constitute  domicil, — first,  resf- 
dence,  and  secondly,  intention  of  making  it  the  home  of  the 
party,”  and  when  once  domicil  is  acquired  it  is  not  shaken  off 
by  occasional  absences  for  the  sake  of  business  or  of  pleasure, 
or  even  by  visits  to  a former  domicil  or  to  one’s  native  coun- 

tiy- 

It  is  often  a matter  of  difficulty  to  decide  where  a person 
has  his  domicil.  Story  has  laid  down  a number  of  practical 
rules  for  determining  this  point,  some  of  the  more  important 
of  Avhich  are  the  folloAving : (1.)  A person  who  is  under  the 
power  of  another  is  considered  to  have  the  domicil  of  the 
principal  party,  as  a child,  of  the  father,  a wife,  of  the  hus- 
band. (2.)  There  is  a presumption  in  favor  of  the  native 
country,  when  the  question  lies  betw^een  that  and  another 
domicil,  and  in  favor  of  the  place  where  one  lives  or  has  his 
family,  rather  than  in  favor  of  his  place  of  business.  (3.) 
Free  choice  is  necessary  ; hence  constrained  residence  is  no 
domicil,  and  in  case  of  change  a new  domicil  begins,  as  soon 
as  choice  begins  to  take  effect.  (4.)  A floating  purpose  to 
leave  the  soil  at  some  future  period  does  not  prevent  domicil 
from  being  acquired,  for  such  a purpose  does  not  amount  to 
a full  and  fixed  intention. 

According  to  some  authorities  a man  can  have  more  than 
one  domicil,  — for  example,  if  he  have  establishments  of  equal 
importance  in  tw'O  places  between  which  he  divides  his  time, 
• — or  he  may  have  no  domicil  at  all.^  This  latter  position  is 
1 Conflict  of  Laws,  ch.ap.  iii.,  § 43.  ^ Savigny,  System,  viii.,  § 359. 


§72. 


EELATIONS  OF  FOEEIGNERS,  ETC. 


105 


denied  by  others,^  on  the  ground  that  a former  domicil  must 
remain  until  a new  one  is  acquired.^ 

Whether  long  residence  Avith  a fixed  purpose  to  return  at 
the  end  of  a certain  time  is  enough  for  the  acquisition  of 
domicil  may  be  a question.  The  Roman  law  denies  this 
character  to  students  Avho  remain  even  ten  years  away  from 
home  for  the  purpose  of  study, ^ on  the  ground,  no  doubt,  that 
they  never  intended  to  establish  themselves  in  the  place  of 
their  sojourn. 

The  subject  of  domicil  becomes  of  great  importance  Avhen 
we  ask  who  is  an  enemy,  and  Avho  is  neutral.  This  bearing 
will  be  considered  when  we  reach  the  subject  of  the  effects  of 
war  upon  neutrals.  It  is  of  importance,  also,  in  another  de- 
partment of  international  law,  to  which,  in  the  order  of  topics, 
we  are  noAv  brought. 


§ 72. 

A man  may  change  his  domicil  from  one  country  to  another, 
and  may  hold  property  in  both  : he  may  in  a third  conflict  of 
execute  a contract  to  be  fulfilled  in  a fourth  : he  may  pJtkifiar  * 
inherit  from  relatives  in  another,  and  have  heirs  in 
another  still : in  short,  with  the  increase  of  commerce  and  of 
emigration,  in  modern  times,  private  jural  relations  stretch  far 
beyond  the  bounds  of  any  one  territory,  where  an  individual 
has  liis  domicil.  But  the  laAvs  of  these  countries  and  their 
judicial  procedures  may  differ  widely  from  one  another.  What 
law  then  shall  rule  in  each  special  case,  where  diverse  laAvs 
come  into  conflict  ? 

A simple  rule  would  be  to  apply  the  law  of  the  place  of  the 
court  (lex  loci  fori,  or  lex  fori  alone)  to  all  jural  relations 
coming  before  it.  A nation  insisting  rigidly  on  its  own  sove- 

1 As  by  StOTj,  § 47. 

2 Domicil  is  sometimes  divided  into  domicil  of  birth,  that  by  operation  of  law, 
and  that  of  choice.  Domicil  of  origin  in  modern  times  is  domicil  in  the  place 
where  his  parents  at  his  birth  were  domiciled.  Compare  Phillimore  after  Savigny, 
iv.,  59,  2d  cd. 

® C.  J.  C.,  10,  39,  L.  2,  De  Incolis.  “ Nisi  decern  annis  trans.actis  eo  loci  sedes 
sibi  constituerint.” 


106 


EIGHT  OF  INTERCOUESE. 


§ 72. 


I’eignty  would  follow  sucli  a rule.  But,  as  Savigiiy  remarks, 
modern  legislation  and  court-practice  aim  not  to  keep  up  local 
sovereignty^  and  jurisdiction,  but  to  decide  without  respect  to 
territorial  limits,  according  to  the  inner  nature  and  needs  of 
each  jural  relation. 

§ 73. 

It  is  the  province  of  private  international  laio  to  decide  which 
of  two  conflicting  laws  of  different  territories  is  to  be 
applied  in  the  decision  of  cases  ; and  for  this  reason 
this  brancli  is  sometimes  called  the  conflict  of  laws. 
It  is  called  private,  because  it  is  concerned  with  the  private 
rights  and  relations  of  individuals.  It  differs  from  territorial 
or  municipal  law,  in  that  it  may  allow  the  law  of  another  ter- 
ritory to  be  the  rule  of  judgment  in  preference  to  the  law  of 
that  where  the  case  is  tried.  It  is  international.,  because,  with 
a certain  degree  of  harmony,  Christian  states  have  come  to 
adopt  the  same  principles  in  judicial  decisions,  where  different 
municipal  laws  clash. 

It  is  called  laiv.,  just  as  public  international  law  is  so  called ; 
not  as  imposed  by  a superior,  but  as  a rule  of  action  freely 
adopted  by  the  sovereign  power  of  a country,  either  in  con- 
sideration of  its  being  so  adopted  by  other  countries,  or  of  its 
essential  justice.  Aird  this  adoption  may  have  taken  place 
through  express  law  giving  direction  to  courts,  or  through 
power  lodged  in  courts  themselves. 

The  foundation  of  this  department,  as  of  all  privileges 
granted  to  strangers,  is  not  generally  regarded  as  hemg  justice 
in  the  strict  sense,  but  the  humanity  and  comity  of  nations,  or, 
in  other  words,  the  recognition  of  the  brotherhood  of  men, 
and  the  mutual  duties  thence  arising.  Justice  may  close  the 
avenues  of  commerce,  and  insist  that  the  most  rigid  notion  of 
sovereignty  be  carried  out  in  practice,  but  good-will  grants  con- 
cessions to  aliens,  and  meanwhile  enlightened  self-interest  dis- 
covers that  the  interests  of  all  are  alike  promoted.  But  com- 
pare § 20  b. 

This  branch  of  the  law  of  nations,  almost  unknown  to  the 
Romans  and  to  mediaeval  jurisprudence,  has  been  slowly  grow- 


§73. 


EELATIONS  OF  FOKEIGNEES,  ETC. 


107 


ing,  in  the  hands  especially  of  the  jurists  of  Holland,  France, 
and  Germany,  since  the  middle  of  the  seventeenth  Growth  of 
century ; but,  although  it  has  made  great  advances  feraationai 
within  the  last  age,  it  is  still  incomplete.  “ In  this 
doctrine,”  says  Savigny,  writing  in  1849,  “ and  especially  in 
the  first  half  of  it  [which  treats  of  collisions  in  place,  as  the 
second  part,  according  to  the  division  of  this  eminent  jurist, 
treats  of  collisions  in  time],  hitherto  the  opinions  of  writers 
and  the  decisions  of  courts  I'un  confusedly  across  one  another  ; 
the  Germans,  French,  English,  and  Americans  often  stand  on 
entirely  opposite  sides.  All,  however,  unite  in  a common 
lively  interest  in  the  questions  which  here  arise,  — in  the  en- 
deavor after  approximation,  removal  of  differences,  and  agree- 
ment,— more  than  in  any  other  part  of  the  science  of  law. 
One  can  say  that  this  branch  of  science  has  already  become  a 
common  property  of  civilized  nations,  not  through  possession 
already  gained  of  fixed,  universally  acknowledged  principles, 
but  through  a community  in  scientific  inquiries  which  reaches 
after  such  possession.  A vivid  picture  of  this  unripe  but  hope- 
ful condition  is  furnished  by  the  excellent  work  of  Story,  which 
is  also  in  a high  degree  useful  to  every  investigator,  as  a rich 
collection  of  materials.”  ^ 

The  details  of  private  international  law  have  no  direct  rela- 
tion to  international  law  as  a code  between  nations  ; and  in 
fact  two  nations  might  observe  all  the  main  obligations  of 
states  towards  each  other,  although  they  should  apply  the  lex 
fori  or  domestic  law  to  all  classes  of  persons  alike  within  the 
jurisdiction  of  the  courts.  But  private  international  law,  at 
first  applied  in  the  spirit  of  comity,  has  become  a large  and 
important  branch  of  law,  which  is  tending,  more  than  any 
other,  towards  a common  acceptance  of  the  same  principles  of 
justice,  towards  brotherhood  of  nations  under  the  same  rules 
of  right.  For  if  two  kinds  of  law,  differing  in  minor  points, 
are  applied,  in  the  same  country,  in  the  case  of  persons  be- 
longing to  different  nationalities,  judges  and  lawyers  cannot 

^ For  a classification  of  the  schools  or  theories  of  writers  on  private  interna- 
tional law  .see  Von  Mohl,  Gesck.  d.  Staalsw.,  i.,  441. 


108 


RIGHT  OF  INTERCOURSE. 


§74. 


fail  to  compare  them,  and  in  the  end  to  have  a tolerably  uni- 
form opinion  touching  their  comparative  value.  The  next 
step  is  to  bring  Iuav  nearer  to  perfection. 

In  the  four  first  editions  of  this  work  we  attempted  to  give 
a brief  sketch  of  this  branch.  In  the  present  one  we  confine 
ourselves  to  the  consideration  of  jural  capacity,  and  then  pass 
on  to  the  effect  of  foreign  criminal  judgments  and  to  extra- 
dition, which  are  sometimes  embraced  in  private  international 
law,  but  more  properly  belong  to  international  law  in  the  strict 
sense,  inasmuch  as  they  contemplate  transactions  of  states  with 
one  another,  and  have  to  do  with  individuals  only  as  being 
the  passive  objects  of  justice. 


§ 74. 

A principle  of  pi'ivate  international  law  in  which  there  is 
Jural  ca-  ^ general  agreement  is,  that  the  jural  capacity  of  a 
pacity.  person  is  determined  by  the  law  of  his  domicil. 

Questions  such  as  those  of  citizenship,  minority,  legitimacy, 
lunacy,  the  validity  of  marriage,  the  legal  capacity  of  a married 
woman,  belong  here.  Thus  a person  having,  according  to  the 
laws  of  his  domicil,  reached  his  majority,  can  make  contracts 
Avhich  are  binding  in  a foreign  countiy,  although  persons  of 
the  same  age  domiciled  there  Avould  be  minors.  So  also  a 
woman  belonging  to  a country  Avhei'e  a married  rvoman  can 
perform  legal  acts  of  herself,  can  do  this  in  a country  where 
such  power  is  denied  to  married  women,  and  vice  versd. 

And  according  to  this  rule  if  a person  changes  his  domicil, 
he  acquires  a new  jural  capacity,  by  which,  in  foreign  parts, 
his  actions  are  to  be  measured.  This  is  true  universally,  but 
in  many  cases  the  courts  of  the  earlier  domicil,  especially  if  it 
were  the  pei’son’s  native  country,  have  shown  a leaning  to- 
wards holding  him  under  their  teriitorial  law. 

The  reasons  which  justify  this  principle  are,  (1.)  That  otlier- 
wise  extreme  inconvenience  Avould  “ result  to  all  nations  from 
a perpetual  fluctuation  of  capacity,  state,  and  condition,  upon 
every  accidental  change  of  place  of  the  person  or  of  his  mova- 
ble property.”  ^ (2.)  That  the  person  subjects  himself  and 

^ Story,  chap,  iv.,  § 67. 


RELATIONS  OF  FOREIGNERS,  ETC. 


109 


§ 74. 


his  condition,  of  free  choice,  to  the  law  of  the  place  where  he 
resides,  by  moving  there  or  continuing  there. 

But  there  are  several  very  important  exceptions  to  the  rule, 
that  the  lex  domicilii  is  to  determine  in  regard  to 

1 T • 1 • mi  • Exceptions 

personal  status  and  lural  capacity,  ihese  exceptions  tothemie 

. . , p . above  given. 

arise  from  the  natural  unwillingness  ot  nations  to 
allow  laws  to  have  force  in  their  courts,  which  are  opposed  to 
their  political  systems,  or  to  their  principles  of  morality,  or 
their  doctrine  of  human  rights. 

1.  One  of  these  is,  that  if  a person  suffers  in  his  status  at 
home  by  being  a heretic,  a country  which  regards  such  dis- 
abilities for  such  a reason  as  immoral,  and  perhaps  is  of  the 
same  religion  with  the  heretic,  cannot  permit  his  lex  domicilii 
in  this  point  to  have  any  effect  in  its  courts,  but  applies  its 
own  law. 

2.  Where  the  laws  forbid  or  limit  the  acquisition  of  prop- 
erty in  mortmain,  or  by  religious  houses,  the  ecclesiastical 
foundations  of  another  land  may  be  affected  by  such  limita- 
tions. On  the  contrary,  in  a state  which  has  no  such  laws, 
religious  corporations,  which  at  home  lie  under  restrictive 
legislation,  may  be  exempt  from  it. 

3.  A man  passing  from  a country  where  polygamy  has  a 
jural  sanction  into  a state  under  Christian  law,  can  obtain  no 
protection  for  his  plurality  of  wives  ; the  law  not  of  his  dom- 
icil but  of  the  place  where  the  judge  lives  must  govern. 

4.  “ So  in  a state  where  negro  slavery  is  not  tolerated,  a 
negro  slave  sojourning  there  cannot  be  treated  as  his  master’s 
propertjq  — as  destitute  of  jural  capacity.”  And  this  for  two 
reasons : “ Slavery  as  a legal  institution  is  foreign  to  our 
polity,  is  not  recognized  by  it ; and  at  the  same  time  from  our 
point  of  view  it  is  something  utterly  immoral  to  regard  a man 
as  a thing.”  So  Savigny.^  To  the  same  purport  Foelix  says  : 
“ On  ne  reconnait  pas  aux  Strangers  le  droit  d’amener  des  es- 
claves  et  de  les  traiter  comme  tels.”  And  to  the  same  effect 
Heffter.  “No  moral  state  can  endure  slavery.  In  no  case 
is  a state  bound  to  allow  the  slavery  which  subsists  in  other, 

^ vni.,  §§  349,  365.  Compare  Storj',  § 96. 


110 


RIGHT  OF  INTERCOURSE. 


§ 74. 


although  friendly,  lands,  to  have  validity  within  its  bor- 
ders.” 1 

This  principle  is  received  into  the  practice  of  the  leading 
nations.  The  maxim  that  the  “ air  makes  free,”  has  long 
been  acted  upon  in  France  ; it  prevails  in  Great  Britain,  and 
with  slight  modifications  in  Prussia.  So  if  a cargo  of  slaves 
is  stranded  on  the  soil  of  a state  which  does  not  recognize  the 
status  of  slavery  in  its  institutions  and  laws,  there  is  no  pro- 
cess under  international  laAV,  excepting  treaty  made  for  that 
express  purpose,  by  which  they  can  be  prevented  from  avail- 
ing themselves  of  their  freedom,  or  by  which  the  owner  can 
recover  them  as  his  property.  There  is  a close  analogy  be- 
tween the  condition  of  such  slaves  on  a foreign  soil  and  that 
of  prisoners  of  war  in  a neutral  port,  escaping  on  shore  from 
the  vessel  where  they  are  confined,  Avho  cannot  be  recaptured, 
since  they  enjoy  the  benefit  of  the  right  of  postliminy  (§  151, 
4.)  So  also  when  a master  freely  biings  his  slaves  into  a 
jurisdiction  where  slavery  is  unknown,  he  can  neither  legally 
act  the  master  there,  nor  force  them  away  Avith  him  to  his 
own  domicil.  They  may  acquire  a domicil  like  any  other 
person  in  the  territory  Avhere  they  are  thus  sheltered,  and 
should  they  revisit  the  country  of  their  enthrallment,  the  lex 
domicilii  would  noAv  determine  their  status  to  be  that  of  free- 
men.^ 

The  case  of  the  Creole  presents  an  extreme  example  of  this 
Case  of  the  I’^fosal  Oil  the  part  of  nations  to  recognize  the  law  of 
creou.  domicil  where  it  sanctions  slavery.  This  ves- 

sel, containing  slaves  in  transportation  from  one  port  of  the 
United  States  to  another,  Avas  by  their  act  forced  to  put  into 

1 Foelix,  It.  s , i.,  30,  § 1.5  ; Heffter,  § 14.  Compare  § 142,  infra. 

2 Compare  the  Louisiana  Reports,  vol.  xiii.,  p.  441,  where  it  is  held,  that  “ where 
a slave  was  taken  from  Louisi.ana,  with  the  consent  of  the  owner,  to  France,  al- 
though afterwards  sent  back  here,  she  was  thereby  entitled  to  her  freedom,  from 
the  fact  of  having  been  taken  to  a country  where  slavery  is  not  tolerated,  and 
where  the  slave  becomes  free  by  landing  on  the  French  soil.”  Priscilla  Smith  v. 
Smith.  So  in  the  case  of  Eliz.  Thomas  v.  Generis  et  al.  (vol.  xvi.,  p.  483,  of  the 
same  Reports),  it  is  held,  that  a slave  taken  to  the  State  of  Illinois,  with  express 
or  implied  consent  of  her  master,  became  free,  and,  being  once  free,  could  net* 
again  be  made  a slave  by  removing  her  to  a slave  State. 


KELATIONS  OF  FOREIGNEES,  ETC. 


Ill 


§ 75. 


a port  of  the  Bahama  Islands  in  the  winter  of  1841-42.  The 
slaves  having  secured  for  themselves  a refuge  on  shore,  the 
colonial  authorities,  and  afterwards  the  British  government, 
refused  to  give  them  up,  as  being  free  persons.  If  the  slaves 
had  merely  fled  to  British  territory,  it  was  conceded  that  they 
could  not  be  demanded  back.  But  it  was  contended  by  Mr. 
Webster,  that  the  law  of  nations  exempts  from  interference 
property  on  vessels  driven  into  foreign  ports  by  disasters  of 
the  sea,  or  carried  there  by  unlawful  force. ^ This  exemption 
from  territorial  law  is  undoubtedly  made  by  the  law  of  na- 
tions. (Comp.  § 68,  end.)  But  the  question  is,  whether  such 
a rule  of  comity  and  humanity  should  override  a greater  act 
of  humanity  and  compel  the  territorial  authorities  to  use  force 
in  order  to  prevent  the  slaves  from  retaining  their  liberty. 
By  what  process  could  this  be  done  in  a land  where  slavery  is 
unknown,  and  Imw  could  a passenger  be  required  to  return  on 
board  a certain  vessel  which  he  had  left  ? 

It  is  to  be  observed,  however,  in  regard  to  applications  of 
foreign  law,  which  the  moral  sense  or  political  principles  of  a 
nation  reject,  that  questions  growing  out  of  a status  wJiich  can- 
not be  recognized  by  the  courts^  if  they  do  not  affect  the  per- 
sonal capacity  itself,  may  be  decided  according  to  the  foreign 
law.  Thus  a contract  relating  to  the  sale  and  purchase  of 
slaves  might  be  held  legal,  if  legal  in  the  domicil  of  the  con- 
tracting parties.  And  it  is  probable  that  the  children  of  a 
polygamist  Turk,^  by  a second  or  third  wife,  would  not  be 
treated  as  bastards  in  all  respects  by  Christian  courts. 

§ 75. 

The  judgment  of  a court  and  the  execution  of  it  are  acts 
of  sovereignty.  Comity  alone  gives  them  effect  out 
of  the  counti’y  where  they  originate.  Many  writer's  foreign 
on  international  law  maintain  that  a definitive  de- 
cision  by  a competent  court  in  a foreign  country,  under  due 
forms  of  law,  and  where  opportunity  of  appeal  is  allowed, 

^ Webster’s  Letter  to  Ashburton,  Works,  vi.,  pp.  303-313. 

2 Comp.  Dcmangcat  on  Fcelix,  i.,  29. 


112 


EIGHT  OF  INTERCOURSE. 


§ 75. 


ought  to  stand  and  receive  its  execution  in  any  other  country, 
as  much  as  the  decisions  of  its  own  tribunals,  — provided,  how- 
ever, that  such  judgment  contain  nothing  contrary  to  the  in- 
terests or  rights  of  the  foreign  country.  This  principle  has 
passed  in  a degree  into  the  laAvs  and  practice  of  the  European 
states.  Some  of  them  have  adopted  in  this  respect  the  rule 
of  reciprocity.  France,  on  the  other  hand,  takes  ground 
which  greatly  restricts  the  effects  of  foreign  judgments  within 
her  borders.  An  ordinance  of  1629,  still  in  force,  prescribes 
that  judgments  rendered  in  foreign  sovereignties,  shall  have 
no  execution  in  France,  and  that  subjects  of  the  French  king, 
against  whom  they  are  rendered,  may  bring  their  cases  up 
anew  for  revision  before  the  tribunals  of  their  own  country. 
According  to  M.  Foclix,  tliis  law  does  not  prevent  judgments 
rendered  against  a stranger  from  being  executed  in  France,  if 
judged  not  inconsistent  with  the  rights  and  interests  of  the 
nation.  England  again  takes  a third  position.  He  who  has 
obtained  a foreign  judgment  in  his  favor,  brings  before  the 
court  a claim  to  the  thing  adjudged  to  him.  The  foreign 
judgment  is  regarded  as  a decisive  proof  of  the  justice  of  the 
claim,  unless  some  irregularity  can  be  shown  by  the  opposite 
party.i 

§ 76. 

Each  nation  has  a right  to  try  and  punish,  according  to  its 
Crimes  com-  laws,  cilmes  committed  on  its  soil,  whoever  may 

foreign'”  b®  the  perpetrator.  But  some  nations  extend  the  op- 
country.  evatioii  of  their  laws  so  as  to  reach  crimes  committed 
by  their  subjects  upon  foreign  territory.  In  this  procedure 
municipal  law  only  is  concerned,  and  not  international  ; and, 
as  might  be  supposed,  laws  greatly  differ  in  their  provisions. 
(1.)  One  group  of  states,  including  many  of  the  German 
states,  some  of  the  Swiss  cantons,  Naples,  (once)  Portugal, 
Russia,  and  Norway,  punish  all  offenses  of  their  subjects,  com- 
mitted in  foreign  parts,  whether  against  themselves,  their  sub- 
jects, or  foreigners,  and  this  not  in  accordance  with  foreign  but 
with  domestic  criminal  law.  (2.)  At  the  opposite  extreme 
^ Foelix,  ii.,  §§  347-404,  especially  § 357.  But  comp.  Story,  §§  603-607- 


§ 76.  RELATIONS  OF  FOREIGNERS,  ETC.  113 

stand  Great  Britain,  the  United  States,  and  France,  which,  on 
the  principle  that  criminal  law  is  territorial,  refrain  from  visit- 
ing with  penalty,  crimes  of  their  subjects  committed  abroad. 
Yet  they  do  not  adhere  to  this  rule  with  absolute  rigor.  The 
two  former  try  and  punish  slave-trading  carried  on  by  their 
subjects  ill  foreign  vessels,  and  crimes  perpetrated  in  foreign 
countries  where  exterritorial  jurisdiction  is  conceded  to  them. 
Great  Britain  punishes  high  treason,  murder,  homicide,  big- 
amy, illegal  acts  of  British  crews,  and  crimes  perpetrated  in 
certain  barbarous  countries.  France  notices  no  crimes  of 
Frenchmen  against  foreigners^  nor  “ debts  ” of  one  French- 
man against  another  on  foreign  soil;  nor  ‘-crimes”  of  French- 
man against  Frenchman,  except  on  complaint  of  the  injured 
party;  but  punishes  offenses  against  the  safety  of  France, 
together  with  counterfeiting  its  seal,  coins,  and  paper  money. 
(3.)  Certain  states,  as  Belgium,  Holland,  Sardinia,  have  pun- 
ished foreign  crimes  of  their  subjects  against  the  state  or 
their  fellow-subjects,  but  only  certain  crimes  of  such  subjects 
in  foreign  parts  against  foreigners.  The  two  former  call  to 
account  only  for  grave  crimes,  as  murder,  arson,  rape,  forgery ; 
— Belgium  adopting  the  same  standard  which  she  applies  to 
her  treaties  relating  to  the  extradition  of  fugitive  foreigners. 
Sardinia  has  made  punisliable  all  “crimes”  of  its  subjects 
abroad,  but  “debts”  are  subject  to  the  rule  of  reciprocity. 
The  scale  of  punishment  also  is  in  all  cases  one  degree  less 
than  that  of  the  same  offenses  committed  at  home.  (4.)  Wiir- 
temberg  makes  the  fact  of  punishment  (in  a milder  form 
than  for  similar  crimes  at  home)  dependent  on  the  questions 
whether  the  given  offense  has  a penalty  affixed  to  it  by  the 
laws  of  the  foreign  state  where  it  took  place,  and  whether  it 
would  be  punishable  there,  if  committed  against  AViirtemberg. 

The  same  difference  of  practice  exists  in  the  case  of  crimes 
committed  by  foreigners  in  a foreign  country  against  a state 
or  one  of  its  subjects,  who  are  afterwards  found  by  the  injured 
state  within  its  borders.  England  and  the  United  States  seem 
not  to  refuse  the  right  of  asylum,  even  in  such  cases.  France 
punishes  public  crimes  only,  and  such  ns  Frenchmen  would 
8 


114 


RIGHT  OF  INTERCOURSE. 


§ 76. 

be  liable  for,  if  committed  abroad.  (See  this  § above.)  So 
Belgium  and  Sardinia,  but  the  latter  state  also,  in  the  case  of 
wrongs  done  to  the  individual  Sardiidan,  first  made  an  offer 
of  delivering  up  the  offending  foreigner  to  t\\e  forum  delicti^ 
and  if  this  was  declined,  then  gave  the  case  over  to  its  own 
courts.  Many  states,  again,  act  on  the  principle  that  it  is  as 
right  to  punish  a foreigner  as  a subject  for  foreign  crimes 
against  themselves  or  their  subjects. 

Nearly  all  states  consider  foreign  crimes^  against  foreign 
states  or  their  subjects,  as  beyond  their  jurisdiction.  A few 
refuse  sojourn  on  their  soil  to  such  foreign  wrong-doers.  A 
few  go  so  far  as  to  punish  even  here,  in  case  the  party  most 
nearly  concerned  neglects  to  take  up  the  matter.  Thus  Aus- 
tria, if  an  offer  of  extradition  is  declined  by  the  offended 
state,  punishes  and  )-elegates  the  criminal.^ 

From  this  exposition  it  is  evident  (1.)  That  states  are  far 
from  viniversally  admitting  the  territoriality  of  crime.  (2.) 
That  those  who  go  farthest  in  carrying  out  this  principle  de- 
part from  it  in  some  cases,  and  are  inconsistent  Avith  them- 
selves. To  this  Ave  may  add  (3.)  That  the  principle  is  not 
founded  on  reason,  and  (4.)  That,  as  intercourse  grows  closer 
in  the  Avorld,  nations  Avill  the  more  readily  aid  general  justice. 
Comp.  § 20  b. 

§ 77. 

The  considerations  Avhich  affect  the  question,  Avhat  a gov- 
criminais  eminent  ought  to  do  in  regard  to  fugitives  from  for- 
Stoa°fOT-  eign  justice,  avIio  have  escaped  into  its  territory, 
try^'^ExtA  chiefly  these:  First,  that  no  nation  is  held  to  be 
rtition.  hound  to  administer  the  hiAvs  of  another,  or  to  aid 
in  administering  them  ; secondly,  that  it  is  for  the  interest  of 
general  justice  that  criminals  should  not  avoid  punishment  by 
finding  a refuge  on  another  soil,  not  to  say  that  the  country 
harboring  them  may  add  thereby  to  the  number  of  its  AA'orth- 
less  inhabitants ; thirdly,  that  the  definitions  of  crime  vary 
BO  much  in  different  nations,  that  a consent  to  deliver  up  all  ac- 

1 These  facts  are  drawn  from  an  essay  on  the  doctrine  of  asylum,  by  R.  von 
Mohl,  in  his  Staalsr.  Volkerr.  u.  Pelitik.,  vol.  i.,  644-649. 


§78. 


EELATIONS  OF  FOREIGNEES,  ETC. 


115 


cused  fugitives  to  the  authorities  at  home  for  trial,  would  often 
violate  the  feeling  of  justice  or  of  humanity ; and  fourthly^ 
that  truth  can  be  best  ascertained,  and  justice  best  adminis- 
tered near  ihe.  forum  criminis,  and  where  the  witnesses  reside. 
There  is  also  a substantial  agreement  among  the  most  civil- 
ized nations  in  regard  lo  proof  and  to  penalty,  in  criminal 
law.  Some  liave  contended  for  an  absolute  obligation  to  de- 
liver up  fugitives  from  justice;  but  (1.)  The  number  of  trea- 
ties of  extradition  shows  that  no  such  obligation  is  generally 
recognized.  Else  what  need  of  treaties  giving  consent  to  such 
extradition,  and  specifying  crimes  for  which  the  fugitive 
should  be  delivered  up?  (2.)  It  maybe  said  that  the  anal- 
ogy of  private  international  law  requires  it.  If  a nation 
opens  its  courts  for  the  claim  of  one  foreigner  on  another,  and 
in  so  doing  applies  foreign  law  to  the  case,  why  should  it  not 
open  them  for  claims  of  a foreign  government  against  vio- 
lators of  its  laws  ? But  the  analogy  fails.  In  private  claims, 
the  basis  of  right  is  admitted  with  a general  agreement  by  the 
law  of  all  states.  In  public  prosecution  of  criminals,  different 
views  of  right  are  taken,  as  it  respect  offenses,  method  of  trial, 
and  degree  of  punishment.  There  is  in  particular  one  class 
of  persons,  — political  offenders,  — whom  the  world  often  re- 
gards as  unfortunate  rather  than  guilty,  Avho  may  make  useful 
inhabitants  of  another  land,  having  sinned  not  against  the 
morality  of  the  universe,  but  against  the  absurd  laws,  it  may 
be,  of  an  antiquated  political  system.  It  is  chiefly  on  their 
account  that  (.3.)  nations,  the  most  humane,  or  the  most 
jealous  of  their  OAvn  sovereignty,  have  felt  it  to  be  base  and 
wrong  to  send  back  voluntary  exiles  to  their  native  land.^ 

§ 78. 

The  right  of  asylum,  tlien,  for  criminals  fleeing  to  a foreign 
land  from  justice  is  and  ought  to  be  quite  a limited  Extradition 
one.  There  are  two  methods  of  extradition,  one  by 

1 The  feeling  at  Athens  is  shown  in  the  very  instructive  oration  of  Demosthenes 
Against  Aristocrates,  § 85,  Bekker,  as  in  ihG  words,  Kara  Thv  Koivhu  oLTrdyTdiP 
avdpuTTCov  v6fjLOV,  cis  Kurai  rhv  (pcvyovra 


116 


RIGHT  OF  INTERCOURSE. 


§78, 


special  favor  of  the  nation,  -where  a particular  criminal  has 
found  a shelter,  and  one  by  treaty,  defining  the  crimes  for 
which  extradition  is  allowed,  and  the  procedure  of  the  parties 
in  regard  to  the  criminal’s  surrender. 

1.  The  first  of  these  methods  must  be  pronounced  to  be 
very  imperfect.  It  will  be  guided  bjr  no  fixed  rules,  but  rather 
by  the  interests  and  the  feelings  of  either  of  the  nations  at  the 
time  ; it  will  bear  on  political  offenders  more  perhaps  than  on 
others  ; stronger  states  will  carry  their  demands  through,  while 
weaker  will  find  justice  to  be  all  on  one  side.  Instances  of 
this  occur  in  antiquity,  as  where  the  King  of  Judah  sent  into 
Egypt  after  an  obnoxious  prophet  who  had  fled  thither,  had 
him  brought  back  and  put  to  death.  So,  also,  the  Athenians 
sent  men  in  quest  of  Themistocles,  and  demanded  him  from 
the  King  of  the  IMolossi.  The  Romans  had  less  need  to  prac- 
tice extradition,  but  their  usage  was  to  remove  a fugitive  crim- 
inal from  the  place  of  his  refuge  to  the  forum  criminis,  how- 
ever distant  it  might  be. 

Some  of  the  instances  of  rendition  of  fugitives,  without 
treaty,  in  quite  I’ecent  times,  show  some  of  the  defects  of  this 
procedure.  One  of  these  is  the  case  of  J.  Napper  Tandy,  a 
member  of  the  Society  of  United  Irishmen,  who,  in  1795,  was 
indicted  for  treason,  fled  to  the  Continent  and  entered  the 
Frencli  service.  The  Parliament  of  Ireland  thereupon  passed 
a statute  that  certain  persons  should  stand  attainted  of  high 
treason,  unless  they  surrendered  themselves  before  December 
1,  1798.  In  November  of  that  year,  Tandy,  and  other  United 
Irishmen,  being  found  to  be  at  Hamburg,  were  arrested  by  re- 
quest of  the  envoy  of  Great  Britain,  — Russia  joining  in  the 
demand  that  they  should  be  delivered  up,  — and  they  were 
taken  to  England,  notwithstanding  the  most  ux'gent  remon- 
strances of  the  French  Directory.  The  trial  for  high  treason 
resulted  in  an  acquittal  on  the  ground  that  they  were  in  con- 
finement and  unable  to  appear  on  trial  before  December  1, 
1798,  according  to  the  conditions  expressed  in  the  Irish  statute. 
Hamburg  was  then  neutral  territoiy,  and  no  treaty  required 
extradition  on  any  terms. ^ 

^ De  Martens,  ErzahL,  etc.,  ii.,  282-291. 


§78. 


RELATIONS  OF  FOREIGNERS,  ETC. 


117 


The  case  of  Arguelles,  occnri'ing  in  the  United  States,  in 
1863,  is  another  remarkable  instance  of  surrender  without 
treaty.  This  man,  the  lieutenant-governor  of  a district  of 
Cuba,  was  charged  with  having  sold  into  slavery  one  hundred 
and  fortj'^-one  captured  negroes  illegally  brought  from  Africa, 
and  with  representing  that  tliey  had  died  after  being  carried 
on  shore.  We  have  never  had  a treaty  of  extradition  with 
Spain,  but  the  authorities  of  the  island  requested  that  he 
should  be  given  up  on  account  of  his  crime,  and  in  order  to 
effect  the  liberation  of  his  victims.  Tlie  Secretary  of  State  had 
him  arrested,  the  marshal  handed  him  over  to  the  Cuban 
agents  as  promptly  as  possible,  and  he  was  conveyed  to  tlie 
island.  There  is  no  doubt,  we  believe,  of  tlie  high  criminality 
of  the  man,  and  as  little  that  no  law  or  exigency  authorized 
the  transaction.  When  a motion  was  made  in  the  Senate,  re- 
questing the  President  to  explain  the  affair,  he  sent  the  papers 
relating  to  it  with  a report  of  the  Secretary  of  State.  Mr. 
Seward  said  in  effect  that,  in  the  failure  of  a treaty  of  extra- 
dition and  of  a law  of  Congress  touching  extradition  to  Spain 
or  its  colonial  authorities,  the  government  gave  up  the  criminal 
under  the  laws  of  nations  and  of  the  Constitution  of  the  United 
States.  Although  there  is  a conflict  of  authorities  — he  added 
— as  it  regards  the  courtesy  of  surrendering  criminals  to  a 
foreign  government,  and  although  there  is  no  international  ob- 
ligation to  give  them  up  without  treaty,  yet  a nation  is  never 
bound  to  afford  asylum  to  criminals  from  abroad;  and  if  in  any 
case  the  courtesy  might  be  practiced  of  giving  them  up,  it 
might  be  especially  in  this.  But  there  can  be  no  question 
that  this  was  an  illegal  stretch  of  power  on  the  part  of  the 
government. 

2.  In  modern  times,  with  the  gi-eat  expansion  of  intercourse, 
it  has  been  found  almost  necessary  to  have  international  rules 
and  agreements  touching  extradition.  The  United  States  have 
concluded  over  twenty  of  such  conventions,  most  of  them  ter- 
minable after  a certain  number  of  years  or  at  tlie  pleasure  of 
either  party.  They  are  framed  on  no  uniform  plan,  and  need 
extensive  revision  ; which  would  not  be  difficult,  for  no  part 


118 


EIGHT  OF  INTEECOURSE. 


§ 78. 


of  the  intercourse  of  nations  can  be  brought  under  general 
forms  more  easily  than  this.  The  provision  that  no  person 
shall  be  surrendered  on  account  of  political  offenses  appears  in 
twelve  of  them,  but  ought  to  appear  in  them  all.  In  quite  a 
number  it  is  provided  tliat  a person  belonging  to  the  country 
in  which  the  demand  is  made  is  not  to  be  given  up.  This 
favors  escape  from  justice,  unless  a nation  tries  its  own  sub- 
jects for  foreign  crimes,  and  even  then  the  forum  criminis  is 
the  only  place  where  evidence  can  be  convenientlj'’  obtained. 
The  domiciled  person  snffei  s for  his  crime ; the  traveler  is 
amenable  to  the  laws  of  the  land  through  which  he  passes ; 
but  in  tliis  case  the  criminal  is  beyond  the  reach  of  justice  be- 
cause he  flees  to  liis  own  country,  although  such  crimes  as  his, 
when  committed  there  by  other  criminals,  are  punished.  Still 
another  common  stipulation  is,  that  if  the  person  demanded 
lias  committed  crimes  in  the  state  wliere  lie  has  taken  refuge, 
its  claim  of  justice  against  him  must  first  be  satisfied. 

Among  the  arrangements  of  the  United  States  for  the  ex- 
tradition of  criminals  the  first  in  time  appears  in  the  treaty 
with  Great  Britain  of  1794.  The  crimes,  in  regard  to  which 
it  should  take  effect  were  forgery  and  murder  ; and  the  evi- 
dence of  criminality  was  to  be  such  as  would  justify  the  appre- 
hension and  commitment  for  trial  of  the  fugitive,  if  the  same 
crime  had  been  cliarged  to  him  in  the  laud  of  his  asylum.  In 
1842,  the  treaty  of  Wasliington  e'xtended  tlie  list  of  crimes  so 
as  to  include,  besides  murder  and  forgery,  assault  with  intent 
to  commit  murder,  piracy,  arson,  robbery,  and  the  utterance  of 
forged  paper.  Its  provisions  apply  to  “ all  persons  ” of  what- 
ever nationality,  wdiether  belonging  to  either  of  the  treaty- 
making poAvers,  or  to  some  third  state.  The  first  extradition 
agreement  betAveen  England  and  France  Avas  contained  in  the 
treaty  of  Amiens  (1802),  Avhich  \A^as  of  limited  duration.  An- 
other of  1843,  soon  afterwards  amended,  is  still  in  force.  In 
1870,  Great  Britain  had  only  these  two  conventions  for  the 
surrendry  of  criminals,  others  for  the  surrendry  of  deserters 
made  Avith  German  states  in  the  eighteenth  century  having 
been  temporary,  and  one  Avith  Denmark  belonging  to  1862, 


§78. 


RELATIONS  OF  FOREIGNERS,  ETC. 


119 


having,  we  believe,  since  expired.  In  the  year  1870  a new 
extradition  act  Avas  passed,  to  which  all  future  extradition 
conventions  Avith  foreign  countries  Avere  to  conform.  One  of 
its  provisions  (3,  12)  forbids  siu’rendry  of  criminals,  unless  the 
state  demanding  them  shall  pass  a law  to  the  effect  that  the 
extradited  person  shall  not  be  tried  or  detained  “for  any  of- 
fense committed  prior  to  his  surrender,  other  than  the  extra- 
dited crime  proved  by  the  facts  on  Avhich  the  surrendry  is 
grounded.”  'I'his,  Avhich  could  hardly  apply  to  the  United 
States,  as  it  Avould  alter  or  add  by  law  to  the  conditions  of  a 
treaty,  is  highly  reasonable  ; and  yet  the  difficulty  remains  un- 
provided for,  that  one  of  two  cognate  dimes,  such  as  forgery 
and  uttering  forged  paper,  might  be  charged  upon  a man  Avho 
Avas  guilty  of  the  ether.  It  Avould  promote  the  interests  of 
justice,  if  the  demanding  nation  in  such  a case  could  get  the 
consent  of  the  surrendering  nation  to  a trial  for  that  offense, 
and  meanAvhile  be  alloAved  to  keep  the  extradited  person  in 
confinement. 

A number  of  treaties  of  extradition  belong  to  the  eighteenth 
century.  The  earliest  perhaps  are  those  of  Holland  Avith  Aus- 
tria and  France,  in  1718.^  Among  the  memorable  particulars 
of  later  treaties  Ave  mention  the  stipulations  of  SAvitzerland  to 
surrender  political  criminals  to  Baden  (1808  and  1820),  and 
to  Austria  and  France  in  1828.  Russia,  Austria,  and  Prussia 
liave  had  similar  arrangements  in  regard  to  Polish  districts 
(1834).  In  certain  conA-entions  of  Belgium  it  is  stipulated 
that  extradition  may  be  refused  on  account  of  equity  and  hu- 
manity. In  some  treaties  the  obligation  ceases  after  a certain 
limit  of  time,  according  to  the  analogy  of  other  criminal  prose- 
cutions. Again,  some  ti’eaties  require  before  extradition,  Avhen 
a crime  is  committed  outside  of  the  man’s  proper  home,  that 
the  authorities  of  his  home  be  asked  to  give  their  consent  to 
the  act.2 

1 Compare  Phillimore,  i , di.  xxi.,  and  for  the  law  referred  to  in  the  text,  i.,  Ap- 
pendix X.,  of  the  same  work. 

® Compare  Profe.ssor  Bulmerincq,  of  Dorpat,  in  Holtzendorf's  artide 

“ Auslieferung.” 


120 


EIGHT  OF  INTERCOUESE. 


§ 79. 


§ 79. 

The  case  of  political  refugees  has  some  points  peculiar  to 
Political  itself.  A nation,  as  we  have  seen,  has  a right  to  har- 
cnmes.  pei’sous,  and  will  do  so,  unless  weakness  or 

political  sympathy  lead  it  to  the  contrary  course.  But  they 
may  not,  consistently  with  the  obligations  of  friendship  be- 
tween states,  be  allowed  to  plot  against  the  person  of  the 
sovereign,  or  against  the  institutions  of  their  native  country. 
Such  acts  are  crimes,  for  the  trial  and  punishment  of  which 
the  laws  of  the  land  ought  to  provide,  but  do  not  require  that 
the  accused  be  remanded  for  trial  to  his  native  country. 


§80. 

APPEISTDIX. 

A CASE,  somewhat  anomalous,  and  remarkable,  whic'h  involves  several 
Case  of  points  of  international  law,  relating  to  the  condition  of  aliens 
Koszta.  j^ncl  the  jirotection  due  to  them,  is  that  of  Marlin  Koszta.  This 
man,  who  had  been  engaged  in  the  Hungarian  rebellion  of  1849,  fled  into 
Turkish  territory  with  a number  of  others,  and,  at  length,  after  refusal  to 
deliver  him  up  to  Austria,  was,  with  the  understanding  of  that  government, 
sent  out  of  Turkey  into  foreign  parts.  “ It  was  alleged  that  he  engaged 
never  to  return,”  says  klr.  Marey,  ‘‘  but  this  is  regarded  as  doubtful.”  ^ 
The  man  chose  the  United  States  as  his  place  of  exile,  and  in  1852  made 
the  usual  declaration,  preparatory  to  being  naturalized,  which  our  laws  re- 
quire. In  1854  he  returned  to  Turkey,  on  account,  it  is  said,  of  private 
affairs.  At  Smyrna,  being  provided  with  a tczlcereli,  or  passport  from  the 
American  consul  there,  and  from  the  acting  charge  at  Constantinople,  he 
was  seized  on  land,  thrown  into  the  water,  taken  up  by  the  boat  s crew  of 
an  Austrian  frigate,  and  put  into  irons.  This  was  done  at  the  instigation 
of  the  Austrian  consul-general  at  Smyrna,  and  after  refusal  of  the  Tuikish 
governor  to  allow  his  arrest.  Intercessions  for  his  release  on  the  giound  of 
his  American  nationality  were  ineffeetual.  Finally,  when  it  was  reported 
that  a design  had  been  formed  of  removing  the  man  by  stealth  into  the 
dominions  of  Austria,  the  eaptain  of  a publie  vessel  of  the  United  States, 

1 IMr.  Ilulsemanvi’s  letter  to  Mr.  Marcy,  and  his  reply  in  Senate  doeuments, 
33d  Congress,  1st  Session,  vol.  i. 


RELATIONS  OF  FOREICxNEKS,  ETC. 


121 


§ 80. 


then  in  port,  prepared  to  resort  to  force,  unless  he  were  released.  This  led 
to  an  arrangement,  by  which  he  was  put  under  the  custody  of  the  French 
consul-general,  until  the  governments  which  were  at  issue  should  agree  what 
to  do  with  him.  He  afterwards  went  back  to  the  United  States. 

The  following  are  some  of  the  points  which  arise  to  view  in  the  discus- 
sion of  this  case  : — 

1.  Granting  that  the  man  was  an  Austrian  subject,  could  he  be  legally 
seized  in  Turkey?  His  crime  had  been  a political  one.  The  Turks  had 
refused,  with  the  approbation  of  ambassadors  of  the  most  important  Chris- 
tian powers,  to  deliver  up  the  Hungarian  fugitives,  on  the  ground  of  the 
political  nature  of  their  offense. 

Jt  was  said  that  the  exterritorial  consular  jurisdiction  mentioned  below 
(§  100),  authorized  his  arrest.  The  reply  of  Mr.  Marcy  to  this  is,  that  such 
jurisdiction  was  intended  for  a different  set  of  cases,  and  such  is  ])robably 
the  fact.  The  Austrian  officials  (if  this  be  so),  in  seizing  him,  committed 
an  offense  against  the  sovereignty  of  Turkey,  and  so,  an  offense  against  the 
law  of  nations. 

2.  But  was  he  an  Austrian  subject?  Austrian  nationality  ceases,  accord- 
ing to  what  is  said  in  § 70,  on  the  authority  of  M.  Foeli.x,  when  a subject 
emigrates  with  the  consent  of  the  government.  He  had  more  than  the  con- 
sent of  his  government  to  his  abandonment  of  his  country;  ho  was  forced 
into  exile.  He  had,  then,  no  domicil,  unless  the  United  States  gave  him 
one,  and  since  exile  cut  off  all  relations  of  citizenship,  the  only  power  that 
could  protect  him  was  that  in  whose  territory  he  resided.  This  it  was 
bound  to  do.  But  to  this  it  might  be  replied,  that  he  had  agreed  in  writing 
never  to  return  to  Turkey,  and  that  the  Austrian  claim  upon  him  would 
revive  on  his  failing  to  fulfill  this  condition.  It  is  indeed  questioned  by  Mr. 
Marcy,  whether  he  engaged  never  to  return;  and  it  might  perhaps  bo  said, 
that,  if  such  an  engagement  existed,  it  related  only  to  return  for  political 
purposes.  But  to  this  Austria  might  reply,  that  she  could  not  know  what 
his  purposes  were,  and  that  the  promise  must  be  absolute,  in  order  to  pre- 
vent his  doing  political  mischief  in  the  neighboi  hood  of  Hungary.  This, 
however,  is  a point  on  which  our  diplomatist  preserves  silence. 

3.  What  were  his  relations  to  (he  United  States?  Not  those  of  a citizen, 
but  of  a domiciled  stranger.  His  oath,  declaring  his  purpose  to  become  a 
citizen,  and  his  long  stay  here,  put  this  out  of  the  question,  attd  his  tem- 
porary absence  could  not  shake  this  character  off.  kloreover,  he  had  a 
passport,  certifying  to  his  American  nationality.  He  would  therefore  be 
entitled,  by  the  law  of  nations,  to  the  protection  of  the  Turkish  authorities 
against  his  Austrian  captors.  Had  he  been  even  a fugitive  prisoner  of  war, 
he  could  not  lawfully  have  been  seized  on  shore,  unless  treaty  had  so  pro- 
vided. He  would  equally  be  entitled  to  all  that  pi’otcction  which  officials 
of  the  United  States  were  authorized  to  extend  to  him  within  Turkish  ter- 
ritory. 


122 


RIGHT  OF  INTERCOURSE. 


§80. 


4.  Would  it  have  been  in  accordance  Avith  international  law  for  the  cap- 
tain of  the  frigate  to  use  force  in  protecting  him  Avitliin  the  port  of  Smyrna V 
Active  and  aggressive  force  certainly  not.  As  things  were,  the  demonstra- 
tion of  force  saved  the  use  of  it.  But  to  complain  of  such  force  Avould  have 
fallen  to  the  duty  of  Turkey,  as  it  Avould  have  taken  place  within  her 
Avaters.  As  for  force,  absolutely  considered,  for  instance  on  the  high  seas, 
Austria  could  not  have  complained,  if  the  evils  of  a sudden  Avrong  on  her 
part  Avere  in  that  Avay  sought  to  be  prevented. 

At  the  bottom  this  Avas  a case  of  collision  betAveen  original  and  trans- 
ferred allegiance,  the  latter  in  its  incipiency,  in  Avhich  the  obligation  to 
protect  the  person,  Avithin  the  limits  of  the  laAv  of  nations,  lay  on  the  United 
States.  IIoAv  Austria  could  have  dealt  Avith  him  Avithin  her  own  territory 
is  another  question.  And  it  must  be  admitted  that  his  mere  declaration  to 
become  a citizen  of  the  United  States  did  not  affect  his  nationality. 


CHAPTER  IV. 


THE  FOKMS  AND  THE  AGENTS  OF  INTERCOURSE  BETWEEN 

NATIONS. 

Section  I.  — The  Forms  of  Intercourse,  or  International 

Courtesy. 

§ 81- 

We  have  hitherto  considered  the  duties  and  usages  of  na- 
tions, so  far  as  they  relate  to  their  treatment  of  in-  General 
dividual  aliens  Avho  are  withm  their  territory.  We 
now  pass  on  to  the  conduct  which  is  due  from  one 
body  politic  to  another,  and  to  the  representatives  by  whom 
public  intercourse  is  managed. 

The  general  duties  here  required  are  those  which  are  in- 
cluded in  the  word  comity  : we  call  them  duties  at  their  origin, 
as  being  more  or  less  indefinite,  and  not  of  strict  obligation  ; 
but  they  become  obligatory,  if  by  compact  or  compliance  Avith 
usage  a nation  takes  them  upon  itself  in  a specific  shape. 
These  duties  are  such  as  polite  treatment  of  a sovereign  or 
of  his  ministers  in  a foreign  country,  courtesy  in  diplomatic 
intercourse,  the  observance  of  court  etiquette,  and  of  respect 
on  the  sea  towards  a foreign  flag.  Besides  duties  such  as 
these,  AA^e  place  under  this  head  respect  for  the  reputation  of 
a foreign  state,  Avhich  is,  as  we  have  seen  (§  18),  a thing  of 
strict  justice. 

The  use  of  formal  expressions  of  courtesy  among  nations 
consists  in  their  preventing  jealousies  and  quarrels.  At  the 
same  time  they  may  themselves  be  the  causes  of  disputes,  for 
Avhen  once  established  by  usage,  to  withhold  them  is  a slight ; 


124 


THE  FORMS  AND  THE 


§ 81. 

and  to  pay  attentions  of  different  kinds,  or  in  different  de- 
grees, to  equal  and  sovereign  states,  may  be  more  provoking 
than  if  both  states  had  been  treated  with  equal  want  of  po- 
liteness. But  on  the  whole,  as  in  the  society  of  individuals 
who  are  equals,  so  among  states,  it  is  probable  that  without 
them  there  would  be  a far  greater  amount  of  unfriendliness. 

§82. 

Every  nation,  as  we  have  seen,  has  a right  of  reputation  : 
Re'-aid  for  Gvery  otliei',  therefore,  is  bound  to  abstain  from 
tioi/of  an-  deeds  and  words,  which  are  calculated  to  wound  its 
other  state,  ggj-^gg  character,  or  to  injure  its  good  name,  or 
that  of  its  sovereign,  before  the  world.  No  nation,  then, 
through  its  public  documents,  or  by  its  official  persons,  can 
with  right  reflect  on  the  institutions  or  social  characteristics 
of  another,  or  make  invidious  comparisons  to  its  disadvantage, 
or  set  forth  in  any  way  an  opinion  of  its  inferiority.  The 
same  is  true  in  respect  to  its  functionaries,  an  intended  insult 
to  whom  is  an  insult  to  the  state  Avhich  they  represent.  But 
a state  i?  not  bound  to  repress  the  free  remarks  made  by  the 
press  and  private  persons  upon  foreign  states  and  sovereigns ; 
althougli  comity,  if  not  justice,  requires  that  foreign  sove- 
reigns should  have  the  power  to  prosecute  for  libel  or  scandal 
before  its  courts.^  Nor  again  ought  regard  for  the  feelings  of 
another  government  to  preclude  a state  from  remonstrating, 
even  in  strong  terms,  against  conduct  Avhich  it  judges  to  be 
oppressive  or  flagitious,  although  that  conduct  may  be  con- 
fined in  its  effects  to  the  subjects  of  the  wrong-doing  state. 
(Comp.  § 115.) 

It  may  be  made  a question,  how  far  documents,  which  are 
TheHuise-  sti’ictly  pubHc,  may  be  complained  of  by  foreign 

mann  affair,  g^^tes,  as  embodying  insults  against  themselves.  A 
noted  case  of  such  complaints  occixrred  in  1850,  after  our  gov- 

1 In  England,  in  1799,  certain  English  snhjects,  prosecuted  fora  libel  on  Paul 
I.,  of  Rus.sia,  were  jninished  by  fine  and  imprisonment.  In  1803,  Jean  Peltier,  a 
French  refugee,  was  found  guilty  in  England  of  libelling  Napoleon,  then  First 
Consul.  War  intervening,  he  was  not  called  up  to  receive  judgment. — T.  S.  (Phil- 
lirhore,  i.,  447.) 


§ 83.  AGENTS  OF  INTERCOURSE,  ETC.  125 

eminent  had  sent  a secret  agent  to  ascertain  whether  Hun- 
gary, in  its  Avar  Avith  Austria,  Avas  likely  to  achieve  its  inde- 
pendence. So  much  the  government  had  a right  to  do,  as 
it  interfered  in  no  manner  in  the  struggle.  But  Avhen  the 
instructions  to  this  agent  Avere  published,  containing  the  ex- 
pression “ iron  rule,”  applied  to  the  SAvay  of  Austria  over 
Hungary,  the  Austrian  government  directed  its  charge  d’af- 
faires at  Washington,  Mr.  Hlilsemann,  to  communicate  its 
displeasure  at  this  offensive  expression,  and  at  the  apparent 
sympathy  Avith  a part  of  the  empire  in  revolt.  It  Avas  re- 
plied by  the  United  States,  that  there  had  been  no  interfer- 
ence in  the  quarrel  betAveen  Austria  and  Hungary  ; that  a 
sympathy  Avith  a people  struggling  for  its  independence  Avas, 
on  our  part,  unavoidable ; and  “ that  a communication  from 
the  President  to  either  House  of  Congress,  is  regarded  as 
a domestic  communication,  of  Avhich  ordinarily  no  foreign 
state  has  cognizance.”  This  is  true,  because  ordinarily  the 
departments  of  a government  do  not  discuss  the  affairs  of 
foreign  countries,  Avith  AA-hich  one  or  other  of  them  has  nothing 
immediately  to  do.  But  it  is  evident  that  communications 
may  be  made  betAveen  the  departments  of  a gOA'ernment,  for 
which  a foreign  state  may  demand  redress.  The  degree  of 
publicity  now  given  to  political  documents  is  such,  that  they 
are  brought  before  the  eyes  of  the  Avorld,  and  cannot  be  re- 
garded as  private.  If  a man  alloAvs  his  private  letters,  re- 
flecting on  individuals,  to  be  published,  he  may  commit  a 
Avrong ; and  so  may  a nation  or  a government  if  it  make  or 
alloAv  to  be  made  public  what  may  fairly  be  called  insults 
to  foreign  states. 


§ 83. 

It  may  be  inexpedient  to  admit  foreign  sovereigns  into  a 
country,  but  comity  requires  that  this  be  ordinarily  Treatment 
allowed,  and  that,  besides  the  exterritoriality  which  °o/erSga's 
they  enjoy  (§  68),  such  marks  of  respect  should  be 
paid  to  them,  and  to  the  members  of  sovereign  houses,  as 
may  be  required  by  the  usages  of  Christian  states.  So  also 


126 


THE  FOKMS  AND  THE 


§83 


in  their  transit  through,  or  passage  along  the  coasts  of  an- 
other country,  they  are  to  be  saluted  in  a manner  becoming 
the  dignity  of  their  stations,  as  the  highest  representatives  of 
an  independent  state. 

A more  free  and  indefinite  treatment  of  sovereign  houses 
by  one  another,  consists  in  friendly  announcements  of  inter- 
esting events,  as  births,  deaths,  betrothals,  and  marriages ; 
and  in  corresponding  expressions  of  congratulation  or  condo- 
lence, amounting  in  the  latter  case  even  to  the  putting  on  of 
mourning.  These  courtesies  of  intercourse  are  called  by 
some  text  writers  state  gallantry. 

Every  court  has  its  ovm  ceremonial  and  rules  of  prece- 
ceremoniai  deiico  at  State  festivals  and  the  like.  While  ob- 
of  courts,  serving  these,  which  are  nearly  alike  wherever  there 
is  a monarch  and  a court,  a state  is  bound  to  make  no  dis- 
tinctions in  external  politeness  between  foreign  representa- 
tives, so  far  as  such  traditional  rules  do  not  make  it  necessary  ; 
and  foreign  representatives  are  bound  to  conform  to  the  cere- 
monial lex  loci,  if  consistent  with  the  honor  of  their  country. 

It  is  evident  that  correspondence  between  the  legate  of 
Diplomatic  State  aiid  the  minister  or  sovereign  of  another 

requires  both  the  forms  of  address  which  are  usual 
states.  among  diplomatists,  and  an  abstinence  from  all  ex- 
pressions of  anger  and  of  contempt.  Otherwise,  an  offense 
against  the  self-respect  of  the  nation  with  Avhose  function- 
aries he  holds  intercourse  is  committed,  and  he  may  need  to 
atone  for  his  fault  by  apology  or  by  recall,  or  else  furnish 
ground  of  complaint  against  his  nation. 

§ 84. 

In  regard  to  the  forms  of  international  politeness  on  the 
Ceremonial  ^ distinction  is  to  be  made  between  what  is 

of  the  sea.  Jone  witliiii  the  waters  of  a nation,  and  what  is  done 
on  the  high  seas,  where  nations  are  entirely  equal.  On  the 
high  seas,  and,  indeed,  in  the  waters  of  third  poAvers,  ships 
of  Avar  are  under  no  imperative  obligation  from  usage  or  law 
to  salute  one  another,  and  yet  such  marks  of  respect  are  not 


AGENTS  OF  INTERCOUESE,  ETC. 


127 


§ 84. 


unusual,  and  are  in  some  degree  expected  ; so  that  the  absence 
of  them,  although  no  insult,  might  be  regarded  as  discour- 
teous. They  ought  generally  to  be  returned  if  offered  by  one 
of  the  parties.^  But  -within  its  o-wn  sea  line,  a sovereign 
state  may  prescribe  the  ceremonies  -with  Avhich  its  forts  and 
ships  of  -war  are  to  be  approached  or  passed,  but  it  must  re- 
quire nothing  -which  can  be  degrading  to  other  states.  And 
in  cases,  -where  the  claim  of  a nation  over  certain  waters  is 
not  acknowledged,  to  refuse  compliance  with  a prescribed  cere- 
mony is  a mode  of  showing  national  independence,  at  which 
no  offense  can  be  justly  taken. 

Various  forms  of  international  politeness  on  the  sea,  are, 
or  have  been  in  vogue,  such  as  furling,  inclining,  or  „ 

^ \ ° Forms  of 

lowering  the  flag,  lowering  the  topsails,  firing  salutes  politeness 

o ° ° ° . on  the  sea. 

Avith  cannon,  sometimes  accompanied  Avith  salvos  of 
musketry,  loAvering  and  raising  the  flag  several  times  in  suc- 
cession, salutations  Avith  the  A^oice,  and  finall}^  complimentary 
visits  to  each  other’s  vessel.  To  take  doAAui  the  flag,  or  to 
loAver  the  topsails,  is  a token  of  inferiority,  Avhich  is  noAV 
nearly  or  quite  obsolete.  To  loAver  or  furl  the  flag,”  says 
Ortolan, 2 “ is  not  now  practiced  betAveen  vessels  of  war,  as  a 
token  of  respect,  and  is  a sign,  rather,  of  mourning  or  of  dan- 
ger. But  merchant  vessels  often  greet  vessels  of  Avar  by  low- 
ering and  raising  the  flag  three  several  times.” 

The  etiquette  of  the  sea  requires  that  a ship  of  Avar  enter- 
ing a harbor,  or  passing  by  a fort  or  castle,  should  pay  the 
first  salute,  except  Avhen  the  sovereign  or  his  ambassador  is 
on  board,  in  Avhich  case  the  greeting  ought  to  be  made  first 
on  the  shore.  So  also  the  earliest  salutation  should  proceed 
from  a ship  meeting  or  joining  a fleet,  and  from  an  auxiliary 

1 Bj'iikevsh.,  Qucest.  J.  P.,  2,  § 24.  “ Qiiod  acl  mare  exterum,  quod  in  niillius 

Principis  dominio  est,  nulliiis  quoque  est  aliis  revercntiam  imperare,  et  salutem 
navibus  suis  praestandam  exigere.  Sunt  qiisedam,  qu£e,  tametsi  lioneste  prassten- 
tiir,  inhoneste  tamen  petiintur.  Inter  ca  refero,  si  qnis  minor  dignitate  majorem, 
in  publico  .sibi  obviam  factum,  sahitet  vel  non  saliitct,  et  si  qua  minoimm  Princi- 
pum  navis,  in  inari  extern,  navibus  majorum  Principum,  quaqua  ctiam  dignitate 
sint,  salutem  dicat  vel  neget.” 

* Diplom.  de  la  Mer,  vol.  i.,  book  2,  ch.  15. 


128 


THE  POEMS  AND  THE 


§84. 


squadron  on  its  approach  to  the  main  armament.  When 
single  vessels  encounter  one  another,  an  admiral’s  ship  is  to 
receive  the  first  compliment,  and  so  downward,  according  to 
rank,  the  inferior  vessel  always  commencing  salutations.  Pri- 
vateers greet  ships  of  war  without  having  a right  to  expect 
the  return  of  the  compliment.  Merchant  ships  salute  foreign 
ships  of  war  by  demonstrations  with  sail  and  flag,  or  with 
cannon,  if  they  have  any,  but  the  ship  need  not  slacken  its 
course  for  such  purposes.  A superior  vessel,  for  instance  one 
with  an  admiral  on  board,  may  respond  to  a compliment  with 
a smaller  number  of  shot,  but  in  general  the  marks  of  respect 
between  public  vessels  must  be  equal. ^ 

The  rules  of  sea  politeness  are  often  embodied  in  instruc- 
tions given  to  commanders  of  vessels  by  their  respective  gov- 
ernments, wdiich  directions,  through  the  Christian  states  of 
the  world,  have  a general  uniformity.  They  are  also  some- 
times a subject  of  special  treaty.  “ They  are  of  use,”  as 
Ortolan,  himself  a naval  officer,  remarks,^  “as  honors  paid  to 
the  independence  of  nations,  as  a public  authorized  recogni- 
tion that  the  sovereignties  of  the  wbrld  are  entitled  to  mutual 
respect.  They  help  the  crews  of  public  vessels,  from  the  com- 
manders dow'n  to  the  marines,  to  feel  that  the  national  honor 
is  in  their  hands,  and  thus  raise  the  sense  of  character  of  those 
who  are  representatives  of  nations  upon  the  seas.” 


§85. 

Formerly,  above  all  in  the  seventeenth  century,  the  tokens  of 
respect  which  certain  nations  demanded  of  others,  in 
Cent.  xyii.  seas  over  which  they  asserted  dominion,  gave  rise  to 
reremoiiies  bitter  feelings  and  to  hostilities,  or  rather  served  as  a 
pretext  for  wars  which  were  waged  on  other  grounds. 
Especially  was  the  English  claim  to  sovereignty  in  the  narrow 
seas  around  Great  Britain,  a fruitful  source  of  animosities  from 
tlje  beo:innin£C  of  the  reign  of  James  I.  onward.  The  demand 
was,  that  all  foreign  vessels  should  first  salute  English  vessels 
of  war  by  lowering  flags  and  topsails,  without  any  correspond- 
1 Comp.  Heffter,  § 197.  ^ Diplom.  de  la  Mer,  u.  s. 


§ 85.  AGENTS  OF  INTERCOURSE,  ETC.  129 

ing  mark  of  respect  being  made  obligatory  on  the  other  side.^ 
This  France  and  Spain  forbade  their  vessels  to  comply  Avitli ; 
and  in  1G34,  by  an  arrangement  between  France  and  England, 
the  ships  of  each  state,  when  nearer  to  the  other’s  territory, 
should  give  the  first  salute.  But  from  Holland,  England  was 
led,  by  commercial  jealousy  and  a feeling  of  superior  strength, 
to  require  those  humiliating  marks  of  respect  Avith  great  perti- 
nacity. 

The  war  between  the  two  nations,  Avhich  broke  out  in  1G52, 
was  preceded  by  an  engagement  betAveen  Blake  and  Van 
Tromp,  gTOAving  out  of  the  demand  that  the  flag  of  Holland 
should  be  loAvered ; and  in  the  treaties  of  1G54,  1GG2,  and 
1G67,  the  Dutch  agreed  to  pay  this  compliment  Avithin  cer- 
tain seas  in  future.  In  1G71,  the  captain  of  a king’s  yacht 
sailed  out  of  the  iMeuse  through  a Dutch  fleet,  having  receh^ed 
orders  to  test  their  compliance  Avith  this  rule ; the  vice-ad- 
miral in  command  declared  his  Avillingness  to  loAA^er  his  OAvn 
flag  to  the  royal  flag  of  England,  but  refused  to  alloAV  tlie 
whole  fleet  to  join  in  the  act.  For  this  the  yacht  fired  upon 
him,  but  its  captain  was  put  into  the  ToAver  on  reaching  Eng- 
land for  not  continuing  his  fire,  although  the  Dutch  had  not 
retaliated.  The  Eno;lish  ambassador  at  the  Hague  claimed 
that  reparation  AA’as  due  for  this  refusal  of  the  vice-admiral,  in- 
asmuch as  not  only  single  vessels,  but  also  AAhole  fleets,  were 
obliged  to  strike  the  flag  to  an  English  vessel  of  Avar.  The 
refusal  of  the'  States-general  to  redre.=s  this  grievance  AA’as  a 
leading  pretext  of  the  already  meditated  Avar  of  1G72.2  At 

1 In  a communication  to  tlie  conrt  of  France  in  1667,  the  Dutch  say  that  they 
are  willing  that  France  should  .salute  them  with  two  cannon-shot  less,  but  cannot 
consent  to  lower  their  flag,  unless  France  shall  do  the  same  in  return.  They  add, 
that  although  the  English,  in  an  article  of  the  treaty  prescribing  tokens  of  respect, 
are  not  expressly  bound  to  return  the  salutation  with  the  flag  which  the  Dutch 
offer  to  them,  it  is  with  justice  presumed  to  be  incumbent  on  them,  and  that  if 
the  English  have  failed  in  such  reciprocity,  they  have  failed  in  their  duty,  for 
which  reason  the  Dutch  aftenvards  refused  to  lower  their  flag,  as  by  treaty  re- 
quired. See  Ortolan,  i.,  369. 

^ Bynkershoek’s  critique  on  this  transaction  (u.  s.)  is  worthy  of  notice.  'While 
he  inclines  to  admit  that  the  treaty  of  1654,  rightly  interpreted,  sustained  the 
English  claim  that  a whole  fleet  of  the  Dutch  should  salute  a single  English  ship 
9 


130 


THE  FORMS  AND  THE 


§ 85. 

the  peace  of  1674,  it  was  stipulated  that  fleets  as  well  as  single 
vessels,  belonging  to  the  Dutcli  republic,  should  furl  the  flag, 
and  lower  the  topsail  before  any  English  vessel  of  war,  be- 
tween Cape  Staten  in  Norway  and  Cape  Finisterre  in  Northern 
Spain.  Even  in  1784,i  these  absurd  tokens  of  inferiority  were 
again  confirmed  in  a treaty. 

The  French,  in  the  same  century,  set  up  similar  pretensions 
against  Holland,  although  without  the  pretext  of  dominion 
over  the  narroAV  seas.  But  their  claims  were  not  so  galling, 
or  so  persevering,  as  those  of  England.  In  an  ordonnance  of 
1689,  Louis  XIV.  went  so  far  as  to  require  that  when  French 
vessels  of  war  met  those  of  other  nations  equal  in  rank,  they 
should  demand  the  first  salute,  and  use  force  if  it  were  with- 
held. This  is  mentioned  as  a grievance  by  William  III.  in 
the  declaration  of  war,  which  he  made  at  the  beginning  of  his 
reign. 

In  the  eighteenth  century,  a number  of  treaties  established 
equality  and  reciprocity  in  the  ceremonial  of  the  sea,  and  the 
practice  of  nations  has  nearly  reached  tliis  point  in  all  re- 
spects.2  And  no  tokens  of  respect,  such  as  were  once  de- 
manded from  Holland,  are  now  called  for  by  any  nation  from 
any  other. 

in  tlie  English  seas,  by  lowering  flag  and  top.sails,  he  claims,  (1.)  that  the  affair 
occurred  near  the  shore  of  Zeeland,  and  therefore  outside  of  the  English  domin- 
ions ; (2.)  that  a yacht,  though  with  guns  on  board,  is  a vessel  of  pleasure,  not  of 
■war ; and  (3.)  that  the  Dutch  vessels  constituted  a fleet,  and  that  fleets  c.an  be 
compared  to  forts,  garrisoned  places  and  harbors,  which  by  common  usage  are  to 
be  saluted  first.  Moreover  a fleet  at  anchor  occupies  a part  of  the  sea,  which  thus 
passes  under  the  sway  and  dominion  of  the  occupant,  to  whom,  therefore,  being 
now  in  his  own  territory,  the  first  tokens  of  respect  are  to  be  rendered.  This  last 
plea  is  evidently  worthless. 

1 Ortolan,  i.,  372. 

2 The  first  of  these  was  between  Russia  and  France  in  1787  ; Calvo,  i.,  274. 
(T.  S.) 


AGENTS  OF  INTERCOURSE,  ETC. 


131 


§ 86- 


Section  II.  — The  Agents  in  the  Intercourse  of  Nations,  or 
Amhassadors  and  Consxds, 

§86. 

Nations  holding  intercourse  with  one  another  need  to  have 
some  understanding  as  to  the  conditions  of  the  in-  persons  ap- 
tercourse,  and  certain  functionaries  by  whom  the  maMgethe 
intercourse  between  the  sovereignties  may  be  carried  bet^eXm- 
on,  and  that  between  the  citizens  or  subjects  may  be 
reduced  to  rule.  Such  persons  we  may  call  generically  ambas- 
sadors ; but  they  may  have  various  other  denominations,  as 
legates,  envoys,  charges  d’affaires,  foreign  ministers,  and  nun- 
cios, which  term,  together  with  others,  is  appropriated  to  the 
Pope’s  messengers  to  foreign  courts.  The  word  ambassador 
may  denote  also  a particular  class  or  rank  of  agents,  of  na- 
tional intercourse.  Wc  may  divide  ambassadors,  again,  into 
ordinary  and  extraordinary,  or  resident  and  temporary,  into 
open  and  secret,  those  with  limited  powers  and  plenipotentia- 
ries, — although  this  last  title  is  often  used  in  a vague  sense 
below  its  proper  meaning,  — those  who  are  sent  to  do  busi- 
ness, and  those  who  represent  the  state  at  some  ceremony  of  a 
foreign  court,  and  the  like. 

Again  the  sovereign,  or  head  of  a department,  or  even  a 
military  officer,  may  discharge  the  functions  of  an  ambassador, 
or  be  joined  with  one  in  negotiations,  without  holding  the 
office  or  having  the  title.  An  ambassador  diffei’S  from  a com- 
missary or  commissioner  to  whom  some  business  not  of  a dip- 
lomatic nature  is  entrusted  ; from  a deputy  who  is  sent  by 
subjects,  as  by  a province,  to  a sovereign  ; and  from  a consul 
who  under  a treaty,  or  by  the  practice  of  two  nations,  protects 
the  private  affairs  of  individuals  of  the  one  within  the  territory 
of  the  other,  and  watches  over  the  commercial  interests  of  the 
nation  which  he  represents. 

The  word  ambassador  comes  through  the  mediasval  Latin 
amlactia  or  amhaxia,  meaning  service  or  charge,  either  from 
the  Celtic  ambactus,  client,  or  retainer,  used  once  in  Csesar’s 


132 


THE  FORMS  AND  THE 


§86. 


“ Gallic  War  ” (vi.,  15),  or  from  the  Gothic  andbahts,  with 
nearly  the  same  sense.^  Both  words  may  he,  indeed,  of  the 
same  origin.  The  signification  will,  then,  correspond  with  that 
of  minuter.  The  Gieek  equivalent  denotes  an  elder  of  the  peo- 
ple. The  Latins  used  the  words  orator^  and  more  commonly 
hgatus^  person  acting  by  delegated  authority,  whence  this 
branch  of  international  law  is  called  jus  legatorum,  and  jus 
legationum,  the  rights  of  legation. 

§87. 

Ambassadors  always  and  eA^ery where  have  had  special  im- 
Originofthe  muiiities,  and  often  something  of  a sacred  character, 
mnbas^  Tliis  saci'eduess,  Avhich  they  have  shared  Avith  heralds 
and  bearers  of  flags  of  truce,  cannot  be  accounted  for 
from  their  being  originally  ministers  of  religion,  selected  be- 
fore others  for  their  gravity  or  dignity ; but  the  jirotection  of 
religion  must  have  been  given  to  them  because  their  functions 
and  duties  Aveve  of  preeminent  importance.  They  Avere  the 
agents  in  all  the  intercourse  of  two  tribes  or  nations,  and  aboA'e 
all  in  making  peace  and  preventing  Avar.  If  not  protected, 
they  Avould  not  expose  themselves  to  the  danger  of  going 
among  enemies  or  strangers.  They  carried  Avith  them  the  dig- 
nity of  repi'esenting  their  nation.  Thus  the  importance  of 
their  Avork,  the  necessity  that  they  should  be  assured  of  safety, 
and  the  dignity  of  their  office,  caused  those  religious  sanctions 
to  be  throAvn  around  them,  by  Avhich  the  more  important  re- 
lations and  rights  Avere  defended  in  ancient  times. 


§ 88. 

Ambassadors  in  ancient  times  were  sent  on  special  occasions 
Temporary  7)y  oiie  uatioii  to  auotlier.  Their  residence  at  foreign 
coui'ts  is  a practice  of  modern  growth..  Some  have 
thought  that  it  Avas  suggested  by  the  Pope’s  legates, 
sent  to  reside,  or  apjAointed  from  among  ecclesiastics  residing 
in  different  parts  of  Christendom.  By  others,  according  to 
Mr.  Ward  (ii.,  290),  it  has  been  attributed  “to  Ferdinand  the 

1 Comp.  Dietz,  Etijinol.,  voce  ambaseia,  and  Grimm,  Worterb.,  voce  amt. 


§ 88.  AGENTS  OF  INTEECOURSE,  ETC.  133 

Catholic,  whose  policy  led  him  to  entertain  [ambassadors]  at 
various  courts,  as  a kind  of  honorable  spies ; ” but  Flassan  ^ 
makes  Louis  XI.  of  France,  Ferdinand’s  earlier  contemporary, 
the  introducer  of  the  new  usage.  “ Before  him  ambassadors 
had  only  temporary  and  limited  missions,  but  this  prince 
judged  it  best  to  multiply  them,  and  to  prolong  their  stay 
abroad,  especially  at  the  courts  of  Burgundy  and  England. 
As  these  courts  penetrated  into  his  design,  they  in  turn  de- 
spatched to  him  permanent  ambassadors,  who  converted  di- 
plomacy into  intrigues  and  trickeries.  Louis  XI.,  on  sending 
the  Sieurs  du  Bouchage  and  De  Solliers  to  the  Dukes  of  Guienne 
and  of  Brittany,  gave  them  for  their  instructions,  ‘ If  they  lie 
to  you,  lie  still  more  to  them.’  ” But  the  residence  of  ambas- 
sadors at  foreign  courts  did  not  become  the  common  practice 
until  after  the  Reformation.  Henry  VII.  of  England  “ would 
not  in  his  time,  suffer  Lieger  ambassadours  of  any  foreign  king 
or  prince  within  his  realm,  or  he  with  them,  but  upon  occasion 
used  ambassadours.”  ^ In  the  middle  of  the  seventeenth  cen- 
tury, it  was  said  in  Poland  of  a French  envoy,  that  as  he  did 
not  return  home  according  to  the  custom  of  ambassadors,  he 
ought  to  be  considered  as  a spy.  And  a century  afterwards 
Bynkershoek  (“  De  For.  Leg.,”  § 1)  defines  ordinary  legates  as 
those  who  “non  unius  sed  omnium  rerum,  atque  adeo  et  ex- 
florandi  ergo  in  amicorum  aulis  habentur.”  Grotius  affirms 
[Cent.  XVII.,  in  the  middle)  that  legationes  assiduce  may,  with- 
out infringement  of  rights,  be  rejected  by  nations,  being  un- 
known to  ancient  practice  (ii.,  18,  3).  But  the  usage  is  now 
fixed  among  all  nations  of  European  origin  ; and  ambassadors 
by  remaining  in  foreign  countries  serve  the  interests  of  their 
own  state  in  various  ways,  far  more  than  persons  could  who 
should  be  sent  abroad  on  special  occasions.  In  fact,  to  attempt 

1 Diploin.  Fran^aise,  i.,  247. 

2 Coke’s  4tli  Inst.,  155,  cited  by  AVard,  ii.  s , who  says  that  Lieger  is  derived 
from  the  Dutch.  But  the  true  explanation  is  to  he  found  in  the  word  Leger  of 
German  origin,  used  in  the  trading  marts  to  denote  an  agent  of  foreign  merchants 
resident  in  a town  where  they  had  a depot  of  their  goods  (called  a Ipghaus),  and 
transferred  to  the  agent  of  a prince.  See  Hiillmann,  Stddtewcsen  des  Mittelalters, 
i.,  202. 


134 


THE  FORMS  AND  THE 


§ 88, 

to  break  away  from  the  usage  might  be  regarded  as  indicating 
a want  of  comity,  if  not  of  friendship.  But  although  the  send- 
ing of  ambassadors  and  even  of  resident  ambassadors  seems 
almost  essential  to  a participation  in  the  international  law  of 
Christendom,  there  are  some  few  in  this  circle  of  nations  who 
have  held  no  such  communication  with  each  other.  England 
and  some  other  Protestant  states  entertained  no  ministers  at 
the  Pope’s  court,  nor  did  he  at  theirs.  On  the  other  hand,  the 
principal  Christian  states  keep  up  diplomatic  relations  with 
some  states  out  of  their  pale  of  civilization  and  religion,  as 
Avith  Turkey,  Persia,  China,  and  Japan,  between  which  latter 
country  and  the  United  States,  by  the  treaty  of  1858,  diplo- 
matic intercourse  Avas  established. 


§ 89- 

The  question,  whether  a nation  is  bound  to  receh^e  the  am- 
is there  any  bassador  of  another,  depends  on  the  question  of  the 
recefre'am^”  I’ight  of  intei’course  Avliicli  lias  been  already  consid- 
bassadors.  ered.  Nor  is  it  impossible  that  intercourse  commer- 
cial, if  not  political,  might  subsist  Avithout  such  an  agent.  But 
if  a nation  has  already  entered  into  diplomatic  ties  Avith  an- 
other, to  dissolA'e  them  is  a breach  of  friendship,  and  is  often 
the  step  immediately  preceding  Avar.  By  treaty  or  usage  a 
right  had  sprung  up,  Avhich,  together  Avith  the  duty  of  comity, 
the  dismissal  of  an  ambassador  iiwaded. 

But  these  are  exceptions  to  the  rule  that  nations  cannot  sus- 
pend their  diplomatic  intei’course,  AA'hen  already  established, 
Avithout  offense.  (1.)  A nation  may  refuse  to  receive  any 
ambassador  Avhen  the  sovereignty  of  the  party  sending  him  is 
doubtful.  This  may  happen  Avhen  a state  is  convulsed  bj^  civil 
Avar,  both  factions  in  Avhich  claim  to  exercise  sovereignty,  and 
Avhen  a neAv  government  after  a reA'olution  is  not  yet  fully 
established.  (2.)  A nation  or  sovereign  may  refuse  to  receive 
a individual  as  the  representative  of  a foreign  power 

Avithout  giving  cause  of  offense.  Thus,  it  is  held  that  a sove- 
reign is  not  bound  to  receive  his  OAvn  subject  in  this  capacity, 
on  the  ground  that  the  privileges  of  his  office  Avould  place  him 


§90. 


AGENTS  OF  INTEECOUKSE,  ETC. 


135 


beyond  tbe  reach  of  the  native  jurisdiction.  So  a person  who 
has  rendered  iiimself  obnoxious,  or  is  of  a notoriously  bad 
character,  may  be  rejected.^  Richelieu  told  the  English  am- 
bassador at  Paris,  that  the  Duke  of  Buckingham  -would  not  be 
accepted  as  ambassador  extraordinary  ; and  at  an  earlier  date, 
Francis  I.  of  France  refused  Cardinal  Pole  as  the  Pope’s  le- 
gate, on  the  ground  of  his  being  a personal  enemy  of  the 
king’s  ally,  Henry  VIII.  of  England.  (3.)  A state  or  sove- 
reign may  refuse  to  receive  a minister  sent  on  an  errand  in- 
consistent -with  its  dignity  or  interests.  The  United  Prov- 
inces, during  their  struggle  for  independence,  declined  treating 
■with  envoys  from  friendly  German  powers,  bearing  proposals 
of  peace  incompatible  with  their  honor  ; and  Elizabeth  of  Eng- 
land rejected  the  nuncio  of  Pius  IV.,  sent  to  invite  her  to  ap- 
point deputies  for  the  Council  of  Trent,  because  his  mission 
might  have  the  ulterior  object  of  stirring  up  disaffection 
among  the  English. 

§ 90. 

The  right  of  sending  ambassadors  is  an  attribute  of  sove- 
reignty, but  the  power  of  appointing  them  may  be  ^ 

vested  in  some  representative  of  the  sovereign.  Thus,  sending  am- 

, bassadors. 

in  this  country,  it  is  exercised  by  the  President  and 
Senate,  or  during  the  lecess  of  the  Senate  by  the  President 
alone,  subject  to  their  confirmation  or  rejection  ; and  it  has 
sometimes  been  intrusted  to  the  commander  of  an  army.  Can 
a deposed  sovereign,  a monarch  without  a kingdom,  perform 
this  function?  In  the  case  mentioned  by  Mr.  Ward  (ii.,  292- 
295),  of  Leslie,  Bishop  of  Ross,  calling  himself  ambassador  of 
Mary,  Queen  of  Scots,  who  was  then  after  dethronement  a 
prisoner  in  England,  the  lawyers  consulted  by  the  government 
decided,  that  “ the  solicitor  of  a prince  lawfully  deposed,  and 
another  being  invested  in  his  place,  cannot  have  the  privilege 
of  an  ambassador,  for  that  none  but  princes  and  such  other  as 


1 Mr.  Burlingame,  a citizen  of  tlie  United  State.s,  was  received,  not  as  an  am- 
bassador, blit  only  as  a special  agent  from  China.  Citizen  Genet  was  recalled  by 
the  French  government  in  1793,  at  the  request  of  Washington.  So  was  M.  Cata- 
cazy,  a few  years  since.  Comp.  § 1 78. 


136 


THE  FORMS  AND  THE 


§90. 


have  sovereignty  may  have  ambassadors.”  The  word  lawf  ully 
seems  to  make  the  opinion  futile,  for  who  is  to  decide.  The 
word  actually  would  have  better  agreed  with  that  safe  usage, 
which  is  a part  of  international  law,  of  acknowledging  the 
sovereign  de  facto,  and  to  which  the  United  States  have  ever 
adliered.i  When  James  II.  lived  in  exile,  his  ambassadors 
were  receiveil  as  those  of  the  sovereign  de  jure  by  a part  of 
the  European  states.  The  more  common  practice  we  apjDre- 
hend  to  be  for  sovereigns  who  sympathize  with  a deposed 
prince  to  hold  communications  with  him  by  persons  not  openly 
sustaining  the  character  of  envoys.  The  whole  matter  may  be 
disposed  of  in  a word  : nations  and  sovereigns,  according  to 
their  biases,  will  be  quick  or  slow  to  recognize  a revolutionary 
government ; some  will  cling  to  the  old  as  long  as  they  can, 
others  will  fall  into  the  current  of  things  sooner  or  later,  but 
fall  into  it  at  length  thej^  will.  And  if  an  actual  sovereign 
feels  himself  injured  by  the  acknowledgment  of  the  claims  of 
a deposed  one,  such  conduct  will  be  attributed  to  hostile  feel- 
ing, and  may  provoke  war.  The  acknowledgment  of  the  sov- 
ereignty of  a new  state  is  sometimes  first  made  by  receiving 
its  ambassadors. 

A protected  or  dependent  state  may  employ  political  and 
other  agents,  but  generally  cannot  send  ambassadors  either  to 
the  principal  state  or  to  third  powers  without  the  consent  of 
the  former.^  The  peace  of  Kainardji,  in  1774,  allowed  the 

1 Tims  Jlr.  SewiU'il,  when  scevetnry  of  .‘■tiUc,  refused  to  receive  a commissioner 
from  the  government  of  Maximilian  in  Mexico,  on  tlie  ground  that  our  govern- 
ment could  liold  no  communications  with  parties  in  an  attitude  of  revolution 
towards  the  autliorities  of  a state  witli  wliom  we  were  in  friendly  diplomatic  in- 
tercourse. He  also  added  that  it  was  a fixed  habit  of  this  government  to  hold 
no  unofficial  or  jirivatc  interviews  with  persons  with  whom  it  cannot  hold  official 
intercourse.  (Dana  on  Wheaton,  note  41.) 

2 Bynkershoek  disposes  of  this  subject  as  follows  {Qnccst.  J.  P.,  ii.,  § 3) : “I 
should  not  be  willing  to  say,  as  some  do,  that  no  one  rightfully  sends  legates  sav- 
ing the  sovereign,  for  thus  we  should  have  to  do  away  with  legates  of  provitices 
and  towms,  of  whom  there  has  been,  and  still  i.s,  a great  abundance.  I should 
rather  say,  that  everyone  can  send  legates  in  the  discharge  of  that  business  which 
he  has  the  power  of  doing,  but  that  according  to  the  dignity  of  the  sender  they 
have  different  rights,  and  are  held  in  different  degrees  of  honor.  If  a prince  in 
his  own  right  sends  them,  they  have  the  full  rights  of  legates ; if  another,  the 


§90.  AGENTS  OF  INTEKCOURSE,  ETC.  137 

Hospodars  of  Moldavia  and  Wallacliia  to  send  each  a charg’d 
d'affaires  of  the  Greek  religion,  and  with  the  privileges  con- 
ceded by  the  law  of  nations,  to  Constantinople.  The  mem- 
bers of  a confederation  may,  or  may  not,  exercise  this  right, 
according  to  the  nature  of  the  compact : no  state  of  our  con- 
federation “shall,  without  consent  of  Congress,  enter  into  any 
agreement  or  compact  with  a foreign  power,”  or  “ enter  into 
any  treaty,  alliance,  or  confederation  ; ” and  the  power  of  ap- 
pointing ambassadors  being  vested  elsewhere,  they  are  per- 
haps, by  that  provision  of  the  Constitution  also,  cut  off  from 
the  exercise  of  a similar  function.  But  the  membei’s  of  the 
German  confederation  could  severally  entertain  their  repre- 
sentatives at  foreign  courts. 

A messenger  sent  from  a province,  or  revolted  portion  of  a 
country  to  the  sovereign,  not  being  an  ambassador,  has  no 
rights  of  one.  Bad,  then,  as  the  act  was,  when  Philip  II.  of 
Spain  detained  two  noblemen  sent  from  the  Low  Countiies  in 
1566,  and  finally  had  them  put  to  death,  it  was  no  offense 
against  the  rights  of  legation.  (Bynkersh.,  “ Quaest.  J.  P.,” 
ii.,  § 3.) 

An  ambassador  being  the  representative  of  a sovereign,  it 
follows  that  the  power  of  choice  lies  with  him,  and  thus,  as  it 
respects  the  country,  religion,  rank,  etc.,  of  the  ambassador, 
no  complaint  can  be  made  by  the  foreign  state,  except  so  far 
as  a slight  or  intention  to  insult  may  be  inferred  from  the  cir- 
cumstances of  the  case.^  Formerly  it  was  not  an  unfrequent 
thing  for  a native  of  one  country  to  serve  as  the  ambassador 
from  another  in  the  land  where  he  owed  allegiance.  But,  as 
we  have  already  said,  some  nations  — as  France,  under  the 

vhole  thing  depends  on  the  tvill  of  him  to  whom  tliey  are  sent,”  etc.  But  thus 
the  question  becomes  one  of  words.  Have  these  legates  tlie  privileges  of  ambas- 
sadors, and  is  a prince  or  state  in  any  way  bound  to  receive  them  I If  not,  can 
they  be  ranked  in  the  same  class  1 

1 Even  women  have  been  acknowledged  as  representatives  at  foreign  courts, 
but  more  frequently  h.ave  been  secret  emissaries.  The  wife  of  Marshal  Guebriant 
acted  in  this  capacity  for  France,  at  the  court  of  Ladislas  IV.,  King  of  Poland,  in 
1646.  The  noted  Chevalier  d’Eou,  who,  after  inferior  diplomatic  employments, 
was  appointed  French  ambassador  at  London,  was  thought  to  be  a woman,  but 
was  not.  Comp.  Kliiber,  § 186,  note. 


138 


THE  FOEMS  AND  THE 


§ 90. 


old  regime  and  the  first  empire,  and  the  United  Provinces 
from  1727  — refused  to  receive  native-born  persons  in  this 
capacity.  When,  however,  nationality  has  been  transferred 
in  accordance  with  the  laws  of  the  states  concerned,  there  can 
be  no  objection  against  such  ministers,  unless  it  be  of  a per- 
sonal nature.  In  some  Catholic  countries,  again,  in  Austria, 
Spain,  and  France,  the  usage  has  prevailed  that  the  sovereign 
of  the  land  shall  nominate  the  nuncio  whom  he  receives  from 
the  Pope  ; the  reason  for  which  usage  lay  probably  in  the 
fear  of  papal  interference,  and  of  unacceptableness  with  the 
native  clergy. 

Sometimes  smaller  sovtu’eigns  have  concurred  in  appointing 
the  same  person  as  their  ambassador,  and  sometimes  the  same 
person  has  held  this  office  for  his  sovereign  at  several  courts. 

When  an  ambassador  is  sent  abroad,  there  must  be  some 
evidence  of  his  official  position.  For  this  purpose  he  is  fur- 
nished with  credentials  certifying  his  diplomatic  character  and 
rank ; namely,  with  a letter  of  credence  (lettre  de  creance), 
sometimes,  also,  with  one  of  recommendation,  and  with  a full 
power,  indicating  the  subjects  on  which  lie  is  authorized  to 
treat,  and  the  amount  of  power  with  which  he  is  invested. 
According  to  their  rank  some  agents  of  foreign  governments 
are  directly  accredited  to  a sovereign,  and  others  to  his  min- 
ister of  foreign  affairs.  Until  such  credentials  are  presented, 
a foreign  government  may  reject,  or  on  other  evidence  receive, 
the  person  claiming  to  be  an  ambassador,  according  to  its 
pleasure. 

5 91. 


An  ambassador,  from  the  time  of  his  entrance  into  the  for- 
eign country  in  that  character,  until  the  time  when, 
.•(mbasTa*  ° at  the  expivatioii  of  his  office,  he  leaves  the  country, 
has  in  modern  days  enjoyed  very  great  privileges  or 
immunities,  which  even  the  breaking  out  of  war  before  he 
can  leave  the  country  will  not  terminate.  Even  before  he  has 
bad  opportunity  to  show  his  credentials  to  the  proper  depart- 
ment of  government,  he  cannot  be  injured  or  obstructed  with- 
out a violation  of  international  law,  if  he  announces  his  official 


§91. 


AGENTS  OF  INTERCOURSE,  ETC. 


139 


character ; and  should  a government  to  which  he  is  sent  refuse 
to  receive  him,  he  must  he  free  to  withdraw  without  receiv- 
ing marks  of  disrespect.  If  he  is  recalled,  free  exit  and  pass- 
ports, Avhere  they  are  necessary,  must  he  gvanted  to  him  ; hut 
if  he  remain  in  the  country  after  that  a sufficient  time 
for  removal,  denoted  in  his  passports,  has  elapsed,  he  takes  the 
jural  relation  of  any  traveller  from  his  native  land, 
i The  more  essential  immunities  conceded  to  the  amhassador 
grow  out  of  the  consideration  that  he  cannot  do  the  business 
intrusted  to  him  well,  unless  his  person  he  safe,  and  he  he  in- 
dependent of  the  control  of  the  foreign  government;  and 
comity  adds  to  these  other  less  important  privileges,  as  marks 
of  respect  to  the  representative  of  a foi’eign  sovereignty. 
Tliese  immunities  have  been  arranged  under  the  heads  of  in- 
violability and  exterritoriality.  Such,  for  instance,  is  Kliiber’s 
classification.  But  to  this  it  may  he  objected  that  exterritori- 
ality may  be  taken  in  a narrower  and  a more  extended  sense. 
The  term  stands,  as  we  have  already  explained  it,  for  that  legal 
fiction,  which  regards  the  agents  of  a government  in  a foreign 
land  as  being  outside  of  the  country  where  they  discharge  their 
functions,  or  as  carrying  with  them  into  another  territoiy  al- 
most as  entire  an  exemption  from  its  laws  as  if  they  were  at 
home.^  But  there  is  no  such  complete  exemption,  and  hence 
it  Avill  he  best,  if  we  arrange  the  rights  of  ambassadors  under 
these  heads,  to  define  what  immunities  are  allowed ; otherAvise 
the  term,  by  its  vagueness,  Avill  lead  us  astray.  De  Martens 
remarks  (§  215),  that  the  “ extension  of  exterritoriality  per- 
tains only  to  the  positive  laAv  of  nations,  to  treaties  or  usage, 
and  is  susceptible  of  modifications,  which  in  fact  it  undergoes ; 
Avhence  it  is  not  enough  ahvays  to  appeal  to  exterritoriality, 
in  order  to  enjoy  those  rights  AAdiich  may  be  derived  from  the 
extended  notion  given  to  the  Avord.” 

1.  When  Ave  speak  of  the  inviolability  of  an  ambassador, 
Ave  mean  that  neither  public  authority  nor  private  persons 

1 This  fiction  was  known  to  Grotius,  who  says  (ii.,  18,  §§  4,  5),  that  as  legates 
“ fictione  qnadam  habentur  pro  personis  mittentium,  ita  etiam  simili  fictione  con- 
stituuntur  quasi  extra  territorium.” 


140 


THE  rOEMS  AND  THE 


§ 91. 

can  use  any  force,  or  do  any  violence  to  him,  without  offending 
against  the  law  of  nations.  It  is  not,  however,  intended  that 
he  may  not  he  repelled  by  force,  if  he  attempts  to 

1.  Inviola-  . . . , , , ^ 

bilityofam-  miui'e  otliei’ individuals  or  to  violate  the  laws,  ihe 

bassailors.  , n i c t c i • 

right  of  self-defense  cannot  cease  on  his  account, 
nor  can  he  enter  places  closed  to  the  public,  nor  do  many  other 
illegal  acts  Avithoiit  having  passive  resistance  at  least  used 
against  him.  The  state  Avitliin  whose  bounds  he  resides,  is 
bound  to  protect  him  against  aggressions  from  its  subjects,  by 
laiv  and  penalty,  and  by  troops  or  a police  force,  Avhen  neces- 
sary. In  one  case  only,  apart  from  the  necessities  of  self-de- 
fense, can  active  force  be  exerted  upon  his  person,  and  that  is 
Avhen,  after  committing  some  great  crime,  and  being  ordered 
home,  he  refuses  to  go : in  such  a case  he  may  be  removed, 
but  Avithout  personal  injury. 

2.  Inviolability  of  person  could  not  stand  alone,  Avithoiit 
protection  to  the  house,  fuinitiire,  equipage,  and  in  fact,  the 
people  of  the  ambassador.  We  shall  arrange  these  Avith  other 

2.  Extern-  immunities  under  the  head  of  exterritoriality,  and 
tonality.  shall  coiisidei’  first,  — 

A.  His  immunity  from  the  jurisdiction  of  the  country  of 
his  sojourn,  both  criminal  and  civil. 

If  the  ambassador  Avere  subject  to  the  criminal  jurisdiction 
(a.)Asim-  of  ^'‘0  foreign  couiiti’y,  his  person  could  not  be  in- 
cJimlmfju™  violate,  as  he  AA’ould  be  liable  to  arrest,  imprison- 
nsdiction;  meut,  uiid  puiiishment ; nor  AA’ould  the  nature  of  the 
acts  inseparable  from  the  processes  of  criminal  Iuavs  be  con- 
sistent Avith  his  freedom  as  a negotiator.  This  immunity  is, 
therefore,  conceded  to  ambassadors  by  all  tlie  nations  of 
Christendom,  and,  although  some  of  the  earlier  writers  had 
some  scrujiles  in  admitting  it,  or  even  contended  against 
it,  the  modem  Avriters  are  belieA^ed  to  be  unanimous  in  re- 
garding it  as  a part  of  international  law.  For  the  excep- 
tions to  this  immunity  Avhich  have  occurred  in  extreme  cases, 
see  § 96. 

In  the  case  of  a native  of  the  country  still  oAvlng  allegiance, 
but  representing  a foreign  sovereign,  it  has  been  questioned 


AGENTS  OF  INTEECOUESE,  ETC. 


141 


§ 91. 


whether  jurisdiction  over  Lira,  civil  or  criminal,  is  suspended 
during  the  discharge  of  his  functions.  The  most  noted  case 
m which  such  a person  felt  the  severity  of  the  law,  was  that 
of  Wicquefort,  a native  of  Amsterdam,  who,  while  he  held 
an  office  under  the  States-General,  became  the  Duke  of  Liine- 
hurg’s  resident  at  the  Hague,  and  while  in  the  service  of  this 
prince,  in  1675,  was  accused  of  betraying  state  secrets  to  for- 
'eigners,  was  tried,  convicted,  and  sentenced  to  imprisonment 
for  life  with  confiscation  of  goods.  ^ In  this  case  it  might  with 
justice  be  maintained  that  he  held  an  office  of  responsibility 
and  could  not  be  released  from  penal  liabilities  as  long  as 
it  lasted ; if  he  took  on  him  duties  to  a new  sovereign,  he 
was  still  accountable  to  the  old  one.  He  betrayed  secrets 
to  which  in  his  office  he  had  access,  and  ought  therefore  to 
suffer.  But  if  a private  citizen  of  a country  is  acknowledged 
by  its  government  as  an  ambassador  from  anotlier  state,  it  is 
fairly  to  be  inferred  that  all  the  immunities  are  conceded  to 
him,  which  are  considered  to  belong  to  that  class  of  persons, 
and  without  which  he  could  not  freely  discharge  its  duties. 
His  sovereign  had  a right  (§  89)  to  refuse  to  recognize  him  in 
that  relation  to  another  sovereign ; in  so  recognizing  him  he 
gives  up  jurisdiction  over  him  for  the  time  being.^ 

Opinions  have  been  divided  in  regard  to  an  ambassador’s 
exemption  from  civil  jurisdiction.  Entire  exemption  ^ 
in  this  respect  cannot  be  argued  from  the  nature  of  from  civil 

. . . r o ^ ^ jurisdiction. 

ins  functions,  and  yet  everywhere  this  exemption  is 
allowed,  so  far  as  it  can  be  derived  from  the  notion  of  exter- 
ritoriality. At  the  least,  according  to  Heffter,  no  step  can  be 
taken  towards  an  ambassador  which  cannot  be  taken  towards 
an  absent  stranger.  No  measures  involving  force  can  be  used 
against  his  jiersoii,  or  the  effects  Avhich  he  has  with  him. 

Hence  the  private  person  to  Avlioin  an  ambassador  owes 
money,  has  no  remedy  against  him  except  through  his  soA^e- 

f Compare  Bynkersh.,  De  For.  Log.,  11  and  IS,  and  AVhcaton’s  Ilistory,  p.  234. 

2 So  substantially,  Wheaton,  Elements,  iii.,  1,  § LI.  Ilcffter  says  the  right  of 
punishing  is  scarcely  taken  aw.ay  from  such  an  ambassador’s  sovereign.  § 214. 
Bynkersh.,  u.  s.,  holds  the  same  opinion  ; “ subditos  nostros,  quamvis  altcrius 
Princiiiis  legationcin  acceperint,  subditos  nostros  esse  non  desiuere.”  So  others. 


142 


THE  FOEMS  AND  THE 


§91. 


reign,  or  by  suit  in  the  ambassador’s  native  courts  after  bis  re- 
turn borne.  Sucb,  at  least,  is  tbe  understanding  and  practice 
in  most  countries.  Prussia  appears  to  claim  somewhat  more 
of  jurisdiction.^  In  a case,  the  discussion  of  wbicb  is  given  at 
gi'eat  length  by  Dr.  Wbeaton,  tbe  owner  of  a bouse  at  Berlin, 
occupied  by  tbe  American  ambassador,  claimed  under  tbe 
Prussian  civil  code  to  detain  tbe  minister’s  goods  found  there 
at  tbe  expiration  of  tbe  lease,  on  tbe  ground  that  damages 
were  due  for  injuries  done  to  tbe  bouse  during  bis  occupation 
of  it.  Tbe  government  of  Prussia  sustained  the  claimant,  but 
tbe  discussion  shows  that  while  a pledge  given  by  an  ambas- 
sador for  tbe  security  of  a debt  could  have  been  detained  by 
tbe  lender,  the  goods  in  tbe  bouse  conld  not  be  kept  from  their 
OAvner  Avitbont  a violation  of  international  laAV.  Tbe  biAvs  of 
tbe  United  States,  accordingl}'-,  “ include  distress  for  rent 
among  other  legal  remedies  Avbicb  are  denied  to  the  creditors 
of  a foreign  minister.” 

O 

An  ambassador  is  bound  to  obseiwe  tbe  police  laAvs  in  re- 
gard to  public  security  and  order  Avitbin  anti  AAdtbout  bis  hotel, 
but  cannot  be  called  to  account  for  transgression  of  them,  any 
more  than  for  bis  pecuniary  obligations. 

One  or  tAVO  exceptions  to  this  exemption  are  laid  doAvn  by 
tbe  Avriters  beside  that  derAed  from  tbe  ambassador’s  acting 
in  a capacity  other  than  his  official  one,  Avhicb  Ave  shall  con- 
sider by  itself.  (§  96.) 

They  are,  (1.)  When  be  is  tbe  subject  of  tbe  state  Avbere 
he  acts.  (2.)  When  be  is  in  its  service.  (3.)  When  he  vol- 
untarily recognizes  tbe  jurisdiction  of  tbe  courts  by  appearing 
before  them  as  a plaintiff,  and  thus  submitting  himself  to  tbe 
defendant’s  court.^ 

1 Comp.  AVhe.aton,  Elements,  \\\.,  1,  § 17,  274-287,  and  Verge  on  De  Martens, 
§2IG. 

2 Comp.  De  Martens,  § 216;  Wheaton,  Elements,  iii.,  1,  § 1.6.  B3-nkcrsh.,  De 
For.  Leg.,  16.  It  does  not  appear  that  the  ambassador  has  a right  to  do  this  -with- 
out leave  of  his  own  government,  for  it  may  prevent  the  due  exercise  of  his  func- 
tions. 


§92. 


AGENTS  OF  INTERCOUKSE,  ETC. 


143 


§ 92. 

B.  The  immunity  from  local  jurisdiction  granted  to  a for- 
eign minister  extends  to  his  hotel  and  goods.  His  xmmunity 
house  is  a sanctuary,  except  in  case  of  gross  crime,  doi^fhXT 
for  himself  and  his  retmue;  and  that,  whether  it 
belongs  to  his  own  government  or  is  hired  or  is  given  to 
him  for  his  use  by  the  state  to  which  he  is  sent.^  His  goods 
also,  or  all  that  is  necessary  for  the  comfort  of  himself  and 
his  family,  together  with  his  equipage,  enjoy  the  same  ex- 
emption. His  papers  relating  to  the  business  of  his  embassy 
are  inviolate.  These  exemptions  are  plainly  as  essential  for 
the  discharge  of  bis  duties  in  his  office,  as  is  his  personal  ex- 
emption from  foreign  jurisdiction. 

It  is  to  be  observed,  however,  that  if  he  chance  to  possess 
real  property  in  the  foreign  country,  or  personal  property, 
aside  from  that  which  pertains  to  him  as  an  ambassador 
(§  .96),  it  is  subject  to  the  local  laws. 

His  privileges  do  not  include  the  right  of  asylum  for  per- 
sons outside  of  his  household.  If  the  fiction  of  ex-  mg  hotel 
territoriality  explained  the  privileges  of  ambassadors,  'fo/c?ira-™ 
the  right  of  asylum  would  be  fairly  deducible  from 
it,  and  a criminal  taking  refuge  in  such  a sanctuary  would  be 
given  up,  if  at  all,  by  a process  of  extradition.  But  it  so  hap- 
pens that  the  house  of  an  ambassador  has  ceased  to  be  an  asy- 
lum, since  the  notion  of  exterritoriality  lias  been  most  current. 
The  right  Avas  attached  in  the  Middle  Ages  to  many  religious 
places,  and  was  conceded  after  this  analogy,  on  account  of  their 
sacredness,  in  some  countries,  to  the  hotels  of  ambassadors; 
but  the  usage,  if  we  are  not  deceived,  Avas  never  general 

^ Sometimes  cxtraordinan-  ambassadors  liavc  quarters  provided  for  them  by 
the  state  to  wliicli  they  are  sent,  their  stay  being  ordinarily  short.  In  1814,  Aus- 
tria .and  England  purcha.sed  houses  for  their  foreign  ministers  in  Paris,  and  in 
1817,  Prussia,  in  Paris  and  Petersburg.  Kliiber,  § 192,  note.  Houses  for  the  re- 
ception of  foreign  ambassadors  were  in  use  in  tlie  empire  of  Charlemagne.  A 
ca|iitulary  of  a.  d.  850  (Perz,  iii.,  407)  speaks  of  “ publicas  domus,  in  singulis  civi- 
tatibus  — autiquitus  constructae,  nostris  usibus  et  e.xtcrnarum  gentium  legationibus 
satis  congruae.”  The  Romans  also  sometimes  entertained  foreign  legates  in  public 
villas  outside  of  the  walls  at  the  publie  charge. 


144 


THE  POEMS  AND  THE 


§92. 


tlu’ougliout  Europe,  and  even  where  it  obtained,  as  in  Rome 
and  Madrid,  was  soinetinies  opposed  and  violated  by  the  gov- 
ernment. Similar  to  tins  right,  if  not  an  extension  of  it,  rvas 
the  freedom  or  privilege  (/us  qiiarteriorum')  of  the  quarter  of 
the  city  where  the  ambassador  resided,  and  which  was  indi- 
cated by  the  arms  of  his  sovereign.  This  right  (or  wrong, 
rather)  prevailed  in  a number  of  places,  as  at  Venice,  Rome, 
hladrid,  and  during  the  meetings  for  the  choice  and  coronation 
of  an  emperor,  at  Frankfort-on-the-Main.  At  Rome,  in  the 
16th  and  17th  centuries,  the  harboring  of  criminals,  under  plea 
of  exercising  this  right,  gave  occasion  to  more  than  one  dis- 
pute between  the  Papal  and  the  French  governments. 

It  is  now  admitted  tliat  if  a transgressor,  not  of  the  ambas- 
sador’s train,  takes  refuge  in  his  premises,  lie  can  be  demanded 
by  the  local  authorities,  and,  if  not  delivered  up,  can  be 
searched  for  and  seized  within  the  hotel ; for  which  purpose 
such  force  in  breaking  doors  open  and  the  like,  may  be  used,  as 
is  necessary  for  his  apprehension.  For,  as  Bynkershoek  (“De 
For.  Leg.,”  § 21)  asks,  “legati,  ut  latrones  recipiant,  mittnntur? 
vel,  sine  receptione  commode  legationi  vacare  non  possunt  ? ” ^ 

§ 03. 

It  is  also  a freedom  commonly  allowed  to  ambassadors,  but 
rather  by  national  comity,  than  as  a fair  deduction 
from  im-  froiii  the  exterritoihil  theory,  that  the  personal  effects 
postb,  e c.  ambassador  are  exempt  from  taxation,  and  that 

duties  are  remitted  on  articles  from  abroad  which  he  needs  for 
himself  and  his  family.  His  importations,  however,  before 
they  reach  his  hotel,  are  liable  to  the  search  of  custom-house 

1 A case  in  point  here  is  tlint  of  a merchant  accused  of  a crime  who  escaped  to 
the  hotel  of  Mr,  Guidekens,  tlio  Englisli  ambassador  at  Stockliolm.  After  some 
delay  and  seeming  threats  on  the  part  of  the  Swedish  king,  he  was  given  up  ; but 
the  ambassador  claimed  the  absolute  right  of  asylum,  and  that  no  force  could  be 
used  against  the  house  of  a foreign  minister;  that  the  guard  put  around  his 
dwellinr),  and  the  demand  to  know  within  an  hour  what  he  would  do  in  regard  to 
the  extradition  of  the  criminal,  were  against  international  practice.  In  the  letter 
of  the  government  to  that  of  Great  Britain  his  recall  was  requested,  and  he  went 
home.  (De  Martens,  Erzaldungeti,  etc.,  i.,  217-235.) 


§93. 


AGENTS  OF  INTERCOURSE,  ETC. 


145 


officers,  and  if  he  has  sent  for  contraband  goods,  they  may  be 
confiscated.  As  for  tlie  rest,  he  is  obliged  to  pay  taxes  (even 
on  his  hotel,  if  it  belongs  to  him  or  to  his  government),  tolls, 
and  postages,  but  is  exempt  from  the  quartering  of  troops.^^ 

Not  long  since  a minister  of  the  United  States,  at  a Euro- 
pean court,  was  charged,  justly  or  unjustly,  with 
havinix  imported,  for  certain  merchants,  goods  from  ambassa- 

° . J-  . ’ . dor's  priv- 

abroad  in  his  own  name,  the  duties  on  which  were,  by  iiege  of  im- 

. T . . T portation. 

courtesy  to  liim,  remitted,  upon  tlie  supposition  that 
they  were  for  his  own  use.  This  dishonest  practice  of  ambassa- 
dors was  formerly  common.  Bynkershoek,  in  his.treatise  “ De 
For.  Leg.,”  cap.  xiv.,  wi'itten  in  or  before  1721,  says,  “ Qiues- 
tiis  legatorum  ex  mercatura  nunc  multo  est  uberrimus  ex  non 
sohitis  vectigalibus  mercium  quas  in  iisum  siium  sibi  neces- 
sarias  fingunt,  et  mox  divendunt.”  The  same  abuse  continued 
for  some  time  afterward,  as  a passage  from  J.  J.  Moser’s 
“ Beitrage  z.  d.  neuest.  Europ.  Gesandtschaftsrecht  ” (Frankf., 
1781),  will  show.  It  is  from  the  chapter  on  ambassadors’ 
rights,  in  respect  to  things  necessary,  § iii.,  on  smuggling. 
“ It  is  not  allowed  to  ambassadors  and  their  trains  to  engage 
in  commerce,  much  less  in  forbidden  commerce.  In  the  year 
1762,  the  following  piece  of  news  came  from  London:  ‘This 
week  a large  quantity  of  baggage  was  brought  into  the  king- 
dom for  the  French  ambassador,  the  Duke  of  Nivernois,  in 
which  were  contained  a number  of  smuggled  articles.  The 
noble-minded  duke  had  these  conveyed  at  once  to  the  custom- 
house, saying  that  he  would  not  stain  his  character,  as  the 
representative  of  a great  king,  by  concealing  and  conniving 
at  frauds.’  ” Then  iMoser  adds,  that  “ in  Machid,  in  the  year 
1777,  some  servants  of  the  papal  nuncio  took  it  into  their 
heads  to  drive  a secret  trade  in  snuff,  upon  which  the  govern- 
ment, without  consulting  the  nuncio  — as  is  the  usage  in  the 
case  of  all  other  ambassadors,  — punished  them  with  banish- 
ment.” 

In  the  year  1772,  according  to  the  same  author’s  “contribu- 
tions to  the  most  recent  European  law  of  nations,”  Part  IV.,  p. 

1 De  Martens,  §§  227-229  ; 'Wheaton’s  Elements,  iii.,  1,  § 18, 

10 


146 


THE  FORMS  AND  THE 


§ 93. 

193  et  seq.,  an  ambassador  may  import  from  abroad  furniture 
required  for  his  sole  use,  unless  it  is  forbidden.  Then  follows 
a case  of  the  seizure  of  a quantity  of  chairs,  wardrobes,  mirrors, 
and,  other  furniture  imported  into  England  in  the  name  of  the 
Italian  ambassador.  The  goods  were  restored,  but  the  cabinet- 
makers made  an  ado  about  introducing  into  the  country,  free 
of  duties,  articles  which  would  employ  several  hundred  work- 
men for  several  months.  A petition  was  presented  to  Par- 
liament, but  no  law  was  passed.  At  a conference  of  foreign 
ambassadors  on  the  matter,  the  Sjianish  legate  denounced 
any  minister  who  would  degrade  himself  to  the  level  of  a 
miserable  smuggler.  come  here,”  said  he,  “ to  uphold, 

not  to  invade,  the  law  of  nations ; and  those  powers  which 
cannot  find  a subject  capable  of  sustaining  their  character 
with  honor,  ought  not  to  send  ministers  into  foreign  coun- 
tries.” 

In  1767,  certain  prohibited  articles  of  merchandise,  imported 
into  Sweden  for  the  French  ambassador,  were  seized,  but  after- 
wards restored  on  his  paying  five  per  cent,  of  their  value.  In 
Russia,  before  the  middle  of  the  eighteenth  century,  the  fran- 
chises or  exemptions  from  customs  had  been  taken  away  from 
foreign  ministers.  In  1762,  Peter  III.  restored  them,  and  made 
compensation  for  the  duties  that  had  before  been  exacted.  In 
1748  — wo  still  quote  from  Moser  — “it  was  decided  to  take 
from  all  foreign  ambassadors  their  exemption  from  duties  of 
entry,  in  Avhich  the  example  of  Russia  was  followed,  which 
government,  not  being  able  to  resist  longer  the  abuses  of  his 
franchise  which  a certain  minister  practiced,  has  been  the  first 
to  judge  it  proper  to  take  away  exemptions  from  all.  As  like 
abuses  are  committed  at  almost  all  the  other  courts,  they  like- 
Avise  will  — there  can  be  no  doubt  — set  bounds  to  the  fran- 
chises of  foreign  ministers  ; and,  in  this  persuasion,  the  king 
has  just  taken  the  resolution  to  increase  the  salaries  of  his 
ministei's  abroad.  In  1749  Holland,  and  in  1748  the  King 
of  Poland,  Elector  of  Saxony,  took  away  exemptions  in  all 
cases  Avhere  their  own  ministers  abroad  did  not  enjoy  the  same 
freedom.” 


AGENTS  OF  INTEECOURSE,  ETC. 


147 


§ 94. 


From  all  this  it  appears  that  the  practice  has  varied,  that 
exemptions  from  duties  were  never  intended  to  cover  any  goods 
except  those  necessary  for  the  ambassador’s  own  private  use, 
and  that  there  was  no  discourtesy  in  taking  such  exemptions 
away. 

§ 9^- 

C.  The  liberty  of  worship  in  a foreign  land  is  now  conceded 
by  the  law  and  usage  of  Christian  nations  to  ambas- 

, , . . . . Ambassa- 

sadors  of  every  l ank,  even  when  their  religion  or  sect  doi-  s liberty 

^ . of  worship. 

is  not  tolerated  by  the  laws  of  the  land.  This  liberty 
might  be  deduced  from  the  rule  of  exterritoriality,  as  in  the 
parallel  case  of  a ship  of  war  in  a foreign  port,  or  still  better 
from  the  consideration  that,  religion  being  a prime  necessity 
of  man’s  nature,  an  earnest  nation  could  have  no  diplomatic 
intercourse  with  another  nation,  within  Avhose  territory  its  re- 
ligion was  prohibited.  But  the  argument,  which  would  sup- 
port this  liberty  of  worship  by  natural  justice  and  the  rights 
of  conscience,  however  valid,  has  here  no  application,  since  a 
great  part  of  the  nations  of  Christendom  have  always  assumed 
the  right  of  allowing  or  prohibiting  outward  worship  at  their 
pleasure. 

This  freedom  of  Avorship  extends  to  the  household  of  the 
ambassador,  and  sometimes  by  comity  or  connivance,  if  not  by 
treaty,  to  his  countrj'men,  who  may  be  residing  at  the  same 
capital.  It  is  not  limited  by  his  presence,  but  when  he  is  on 
a journey,  or  during  the  intervals  between  tAvo  legations,  it 
may  still  be  kept  up.  But  his  household,  and  even  his  Avife,  it 
is  held,  if  of  another  religion  than  his  own,  haAm  no  separate 
right  of  Avorship.  It  is  held,  also,  that  if  there  be  religious 
rites  publicly  alloAved,  of  the  same  sect  to  Avhich  the  ambas- 
sador belongs  and  Avhere  he  is  residing,  he  may  be  forbidden  to 
liaA’e  a chapel  and  services  of  his  oAvn,  Avhich  noAV  are  no  longer 
necessary.  Thus,  Avhen  the  Emperor  Joseph  II.  granted  tol- 
eration at  Vienna  to  the  adherents  of  the  Augsburg  Confes- 
sion, it  Avas  declared  that  domestic  Avorship  at  the  hotel  of 
Lutheran  ambassadors  AA’ould  no  more  be  permitted.  But  in 
Constantinople,  where  the  Greek  Church  is  tolerated,  as  the 


148 


THE  FORMS  AND  THE 


§ 94. 

Czar  does  not  own  the  authority  of  the  patriarch  there,  his 
minister  has  a special  place  of  worship. 

This  worship  may  be  such  in  the  fullest  sense,  that  is,  there 
may  be  a chaplain  or  chaplains  and  whatever  other  persons 
are  necessary  for  the  services  of  religion,  due  administration  of 
the  sacraments,  and  the  like.  But  it  must  be  strictly  house- 
worship,  in  a room  fit  for  the  purpose,  yet  without  bell,  organ, 
or  other  sign,  indicating  to  passengers  in  the  street  that  a 
chapel  is  near  by.  And  it  is  held,  that  natives  of  the  country 
cannot,  without  leave  from  the  government,  partake  in  the 
services;  nor  has  the  chaplain  a right  to  ajjpear  abroad  in  his 
canonicals.  A French  ambassador  at  Stockholm,  Chanut, 
claimed  the  right  of  admitting  Swedes  to  his  Catholic  chapel, 
at  services  not  tolerated  in  the  country,  which  amounted  to 
a claim  of  power  to  suspend  the  law^s.  When,  in  1661,  the 
Dutch  imprisoned  the  F rench  ambassador’s  chaplain  for  per- 
forming mass,  their  reason  was  that  the  ambassador  had  left 
the  country.  Most  preposterous  was  the  claim  of  Philip  II. 
of  Spain  that  the  trains  of  ambassadors  at  Madrid  should  go 
to  mass. 

It  is  held,  that  the  ambassador  may  not  set  up  worship  as 
his  own  affair,  but  only  by  leave  of  his  government.  Where 
freedom  of  worship,  as  with  us,  is  unlimited,  all  these  re-' 
strictions  are  inapplicable,  unless  imposed  by  way  of  reci- 
procity ; and  the  necessity  for  separate  worship  in  general 
ceases.  Treaty  sometimes  gives  greater  liberty  than  is  here 
laid  down.^ 


§ 95. 

D.  The  same  exemption  fi'om  local  jurisdiction,  which  the 
ambassador  himself  enjoys,  is  granted  by  the  law  of 

Privileges  of  . i • i i • 

his  family  natioiis  to  liis  family  and  train,  as  to  Ins  chaplain, 

and  train.  , . . . , i»  i • 

physician,  private  secretary,  and  secretary  of  legation, 
and  to  his  domestic  servants.  Dr.  Wheaton  remarks,  in  re- 
gard to  the  latter,  that  the  laws  and  usages  of  most  countries 
call  upon  ambassadors  to  furnish  official  lists  of  their  servants, 
1 Comp.  Kliiber,  § 215  ; Heffter,  § 213  ; De  Martens,  §§  222-226. 


AGENTS  OF  INTERCOUESE,  ETC. 


149 


; §95. 


I that  they  may  be  entitled  to  their  exemption.^  The  secretaries 
are  peculiarly  protected,  as  being  necessary  to  carry  on  the 
' business  of  the  embassy ; and  above  all,  the  secretary  of  lega- 
, tion,  as  a responsible  person  intrusted  by  the  ambassador’s 
government  with  more  or  less  of  his  power  during  his  absence 
i or  at  his  death,  and  by  virtue  of  his  appointment  a public 
officer. 

The  reasons  for  this  exemption  in  the  case  of  servants,  es- 
pecially of  natives  of  the  country  whom  the  foreign  minister 
hires,  are  of  little  cogency,  since  others  could  be  speedily  found 
to  take  their  places  ; but  the  exemption  is  tolerably  well  estab- 
lished. Should  it,  however,  appear  that  a criminal  was  taken 
into  an  ambassador’s  service  in  order  to  protect  him,^  it  is 
doubtful  Avhether  this  would  be  endured, — at  least  it  would 
be  a ground  of  complaint  against  tlie  employer  ; — and  if  any 
of  his  servants  while  in  his  employment  carries  on  a traffic  in 
which  he  incurs  debts,  such  person  loses  his  privileges  ; he  is 
considered  to  sustain  two  characters,  one  of  which  will  not 
shield  him  from  the  consequences  of  acts  done  in  the  otlier.^ 
An  ambassador  may  also  give  up  his  control  over  domestics 
hired  within  the  foreign  country,  but  perhaps  cannot  do  this 
in  regard  to  those  whom  he  has  brocight  with  him.^  At  sev- 
eral congresses,  as  at  Munster  and  Nymwegen,  the  assembled 
envoj’^s,  in  order  to  check  the  riotous  conduct  of  their  herd  of 
domestics,  gavo  the  police  over  them  into  the  hands  of  the 
magistrates  of  the  town. 


1 This  had  become  obsolete  for  a while  before  Bynkershoek  wrote  his  work  De 
Foro  Legatornm.  In  chap.  16,  he  .says,  “ Optimo  excmplo  in  quibusdam  aiilis  olim 
receptum  fuit,  ut  legatus  teneretur  exhibere  nomenclatnram  comitum  suorum, 
sed  pessimo  exemplo  id  nunc  nbique  gentium  negligitur,” 

2 But  comp.  Dana  on  Wheaton,  note  128,  where  the  British  government  claimed 
the  right  to  arrest  the  coachman  of  the  American  ambassador  for  an  assault  out- 
side of  the  residence.  It  was  admitted,  however,  that  due  notice  ought  to  be  given 
to  the  ambassador,  that  he  might  deliver  him  up  or  make  arrangements  with  the 
police  as  to  search  and  seizure. 

® Bynkershoek  asks  whether  those  who  follow  in  an  ambassador’s  train,  “ unice 
ut  lucro  suo  consulant,  institores  forte  et  mercatores,”  are  his  companions,  and  de- 
cides in  the  negative.  — De  For.  Leg.,  § 15,  ad  cal«em. 

^ Heffter,  § 221  ; Vattel,  iv.,  9,  § 124. 


150 


THE  POEMS  AND  THE 


§ 95. 

E.  From  the  rule  of  exterritoriality  strictly  carried  out,  and 
An  amijas-  fi’oni  tile  uecessity  of  some  government  over  an  am- 
^7'  bassador’s  train,  it  might  be  argued  that  jurisdiction 
suite.  them,  criminal  as  well  as  civil,  ought  to  be 

lodged  in  him.  If,  however,  such  power  pertained  to  him,  it 
could  only  be  by  the  laws  of  his  own  country.  F ut  then  a 
foreign  government  cannot  be  expected  to  permit  a stranger 
to  perform  the  highest  acts  of  criminal  justice  within  its  ter- 
ritory, unless  it  be  for  the  purpose  of  canning  out  military 
law  on  a vessel  of  Avar,  or  in  an  army  passing  through  the  land. 
Flence  the  jurisdiction  of  an  ambassador  in  modern  times  over 
his  train  is  actually  confined  to  subordinate  measures.  In 
criminal  cases  a folloAA^er  of  his,  committing  a crime  outside  of 
the  hotel,  is  deli\’ered  up  to  him,  he  gathers  and  prepares  the 
evidence,  and  sends  the  accused  home  for  trial.  He  exercises 
voluntary  jurisdiction,  as  far  as  his  suite,  and,  if  permitted  by 
the  foreign  and  his  OAvn  country,  as  far  as  his  countrymen  so- 
journing near  him  are  concerned,  in  receiving  and  legalizing 
testaments,  authenticating  contracts,  affixing  his  seal,  and  the 
like.^  “But  the  right  of  contentious  jurisdiction,”  says  Heffter, 
“is  noAA'here,  Avitliin  my  knoAvledge,  conceded  to  ambassadors 
at  Christian  courts,  even  for  the  persons  of  their  suite ; but 
they  here  simply  execute  requisitions  directed  to  them,  espe- 
cially in  regard  to  the  hearing  of  witnesses,  and  all  this  accord- 
ing to  the  laws  of  their  oaaui  country.” 

When  a crime  is  committed  by  a native  servant  belonging 
to  the  foreign  minister’s  household,  or  when  persons  attached 
to  the  trains  of  two  ambassadors  break  the  public  peace  by 
quarrels,  the  only  convenient  way  of  proceeding  is  to  deliver 
them  over  to  the  courts  of  the  country  to  be  tried. 

Formerly  ambassadors  sometimes  exercised  the  power  of 
blood  over  their  retinue.  The  most  noted  case  of  this  kind 
occurred  at  London  in  1603,  when  Sully,  then  Marquis  of  Ros- 
ny,  was  ambassador  there.  One  of  his  people  having  killed 
an  Englishman  Avith  Avhom  he  had  a quarrel  at  a brothel. 
Sully  assembled  a council  or  jury  of  Frenchmen,  condemned 

1 Heffter,  § 216. 


§96. 


AGENTS  OF  INTERCOURSE,  ETC. 


151 


the  man  to  death,  and  delivered  him  up  to  the  English  author- 
ities for  execution.  He  was  pardoned  by  James  I.,  where- 
upon the  French  claimed  that,  as  he  was  judged  by  his  own 
tribunal,  the  pardon  was  unauthorized. ^ 

§ 96. 

An  ambassador  can  claim  exemption  only  for  the  property 
which  he  holds  in  the  foreign  country  as  an  official  limits  of 
person.  If  he  has  another  character,  as  that  of  a legcs‘’Sram- 
merchant  or  a trustee,  his  property  so  held  is  subject 
to  the  laws  of  the  land.  Formerly  it  was  not  uncommon  for 
merchants  to  represent  the  minor  princes  of  Europe  at  the 
smaller  courts.  Bynkei’shoek  says  that  in  his  time  they  made 
great  gains  by  importing  goods  free  of  duty,  on  the  pretense 
that  these  were  necessary  for  their  OAvn  use,  and  then  selling 
them.  But  to  appoint  merchants  as  ministers  in  countries 
where  they  do  business  is  believed  to  have  become  almost  ob- 
solete, and  this  source  of  gain  is  cut  off  by  better  regulations. 
(§  92.) 

There  is  now  a very  general  uniformity  both  of  opinion  and 
practice,  that  ambassadors  committing  grave  crimes  Ambassa- 
whether  against  the  state,  or  against  moral  order, 
must  be  remanded  home  to  their  sovereign  for  judg- 
ment,  and  that  only  self-defense  will  allow  the  killing  of  such 
a functionary.  But  neither  opinion  nor  practice  was  so  uni- 
form two  centuries  and  more  ago,  especially  in  England.  The 
case  of  Leslie,  Bishop  of  Ross,  to  which  we  have  already  re- 
ferred, furnishes  us  with  the  opinion  of  English  lawyers  on 
the  question  Avhether  an  ambassador,  cognizant  of  and  privy 
to  treason,  is  punishable  by  the  prince,  in  whose  realm  and 
against  whom  the  treason  is  committed.  The  answer  was, 
“We  do  think  that  an  ambassador,  aiding  and  comforting  any 
traitor  in  his  treason  toward  the  prince  with  whom  he  pre- 
tendeth  to  be  ambassador  in  his  realm,  knowing  the  same  trea- 
son, is  punishable  by  the  same  prince  against  whom  such  trea- 
son is  committed.”  Leslie  stoutly  protested  against  all  right 

1 Ward,  ii.,  527. 


152 


THE  FOEMS  AND  THE 


§96. 


of  jurisdiction  over  him,  and  was  not  tried,  but  was  detained 
for  some  time  in  prison  and  then  banished  the  kingdom.  A 
few  years  afterwards,  a contrary  opinion  was  given  by  men 
better  informed  in  the  law  of  nations,  Albericus  Gentilis  and 
Francis  Hotmail,  in  the  case  of  Mendoza,  the  Spanish  min- 
ister in  England,  who  had  plotted  to  bring  in  foreign  sol- 
diers and  dethrone  Elizabeth  ; they  decided  that  an  ambassa- 
dor who  had  even  been  concerned  in  a consjiiracy  could  not 
be  put  to  death,  but  must  be  remanded  to  his  prince  for  pun- 
ishment. And  a little  after  in  the  reign  of  James  I.,  when  the 
Spanish  ambassadors  charged  the  Duke  of  Buckingham  with 
a conspiracy  against  the  king,  which  ivas  regarded  as  false  and 
libellous.  Sir  Robert  Cotton,  being  consulted  whether  any  pro- 
ceedings could  be  instituted  against  them,  maintained  that  an 
ambassador  as  representing  the  person  of  a sovereign  prince 
is  “exempt  from  regal  trial:  that  all  actions  of  one  so  quali- 
fied are  made  the  act  of  his  master  until  he  disavow  them  : 
and  that  the  injuries  of  one  absolute  prince  to  another  are 
factum  hostilitatis,  not  treason.”  And  he  proposed  “that 
a formal  complaint  against  the  ambassador  should  be  sent  to 
the  king  of  Spain  requiring  such  justice  to  be  done  upon  him 
as  by  leagues  of  amity  and  the  law  of  nations  is  usual,  wliich 
if  he  refused,  it  would  be  a dissolution  of  amity,  and  equivalent 
to  a declaration  of  war.”  And  yet,  at  the  same  time  when 
such  doctrine  now  universally  regarded  as  sound,  was  taught. 
Coke  thinks  that  “ if  an  ambassador  commits  a crime  Avhich 
is  not  merely  a malum  proliihituvi  by  act  of  parliament,  pri- 
vate law,  or  custom  of  the  realm,  but  contra  jus  gentium^  as 
treason,  felony,  adultery,  he  loses  privilege,  and  may  be  pun- 
ished in  England  like  any  other  alien.”  This  opinion  had 
weight  Avith  succeeding  lawyers.  Foster  presents  a view 
somewhat  similar  to  this,  namely,  that  although  ambassadors 
oAve  no  allegiance  to  the  sovereign  of  the  country,  they  are 
members  of  society,  and  therefore  bound  by  the  eternal  uni- 
versal laAv  which  keeps  all  civil  societies  together  ; and  hence 
may  be  brought  to  justice  like  other  offenders,  if  they  commit 
those  enormous  offenses,  which  are  against  the  light  of  nature 


§ 96.  AGENTS  OF  INTERCOUESE,  ETC.  153 

and  the  ■well-being  of  all  society.  And  Sir  Matthew  Hale  ex- 
presses the  opinion,  that  if  the  ambassador  or  his  associates 
commit  any  capital  offense,  save  treason,  as  rape,  murder,  or 
theft,  they  may  be  pi’oceeded  against  by  indictment  in  the 
ordinary  course  of  justice,  like  other  aliens. 

The  case  which  seems  to  have  led  him  to  this  opinion  was 
the  noted  one  of  Sa,  although  it  applied  only  to  the  compan- 
ions of  ambassadors.  Sa,  in  1653,  during  the  commonwealth, 
being  the  brother  of  the  Portuguese  ambassador  and  one  of 
his  train,  fell  into  a quarrel  Avith  one  Gerrard,  and  Avounded 
him,  but  he  was  saved  from  death  by  the  interference  of  an- 
other gentleman  standing  by.  Thereupon,  AAutli  other  Portu- 
guese, fifty  in  number,  Sa  came  on  the  next  night  to  the  same 
place,  and  Avith  his  associates  killed  one  person  and  AVOunded 
many.  The  ambassador  AA^as  required  to  deliver  up  the  delin- 
quents, and  CroiuAvell  resolved  that  Sa  should  be  tried  by  the 
laAv  of  the  land.  The  case  Avas  referred  to  a special  coui’t  of 
men  learned  in  the  law,  Avho  decided  that  he  could  be  in- 
dicted. He  was  tried  before  a jury,  found  guilty,  and  suf- 
fered death.  It  seems  from  a statement  of  the  case,  that  if 
he  had  been  an  ambassador,  his  privilege  Avould  have  protected 
him,  but  a distinction  Avas  made  betAveen  the  principal  and 
the  members  of  his  train. 

The  laAv  of  England  afforded  no  sufficient  protection  to 
ambassadors  until  1708,  Avhen,  on  the  occasion  of  the  arrest 
for  debt  and  the  ill-usage  of  the  Russian  minister,  a very  se- 
vere law  Avas  enacted,  by  Avhich  it  rested  Avith  the  chancellor 
and  chief  justices,  or  any  two  of  them,  to  inflict  such  punish- 
ment as  they  should  think  fit  on  the  person  Avhom  they  should 
find  guilty  of  bringing  a suit  against  a minister  or  his  servants. 

A little  after  this,  in  1717,  Gyllenborg,  the  SAvedish  am- 
bassador in  England,  was  engaged  in  a conspiracy  to  invade 
the  country  and  dethrone  the  first  George.  He  Avas  arrested, 
his  dispatches  seized,  and  his  cabinet  broken  open.  The  case 
so  far  was  like  many  acts  of  violent  infraction  of  international 
laAv,  and  deserves  to  be  mentioned,  only  because  the  secre- 
taries of  state  maintained,  by  Avay  of  apology  to  the  other 


154 


THE  FORMS  AND  THE 


§ 96. 

ministers  resident  in  London,  that  the  measure  was  necessary 
for  the  peace  of  the  kingdom^  Extreme  necessity  Avould  be 
a good  plea  even  for  killing  an  ambassador,  as  Bynkershoek 
says  at  the  end  of  his  work  “ De  Foro  Legatorum,”  but  the 
question  in  such  cases  is,  could  not  simple  sending  home,  forci- 
ble expulsion,  if  necessary,  answer  every  purpose.^ 

§ 97. 

Bynkershoek  lays  it  down  “ non  valere  jus  legationis  nisi 
Relations  of  inter  utrumque  Principem,  qui  mittit  legates,  et  ad 
quern  missi  sunt ; eastern  [legates]  privates  esse.” 
third  power.  Qpotius  luid  already  taught  the  same  thing,  and 
nearly  all  modern  Avriters  concur  in  this  opinion.  Vattel, 
however  (iv.,  7,  § 84),  maintains  that  innocent  transit  through 
a third  country  may  not  be  refused  to  an  ambassador,  unless 
suspected  of  sinister  designs  on  his  Avay ; that  to  insult  him 
is  to  insult  his  master  and  the  Avhole  nation  to  which  he  be- 
longs; and  that  to  injure  him  is  picking  a quarrel  with  all  na- 
tions “ Avho  are  concerned  to  maintain  as  sacred  the  right  and 
means  of  communicating  together  and  treating  of  their  affairs.” 
There  is  so  much  truth  in  this,  that  an  injury  done  to  an  am- 
bassador, on  his  way  through  a land  Avhere  his  countrymen 
enjoy  protection,  is  a far  greater  crime  than  one  done  to  a pri- 
vate man,  and  that  all  comity-  and  hospitality  ought  to  be 
shoAvn  to  him.  But  his  status  is  not  the  same  as  in  the  land 
to  Avhich  he  is  accredited.  The  exterritorial  immunities  avail 


1 One  of  the  most  atrocious  violations  of  international  law  on  record,  was  the 
murder  of  two  French  ministers,  Bonnier  and  Roberjot,  on  their  way  home  from 
the  Congress  of  Rastadt  in  April,  1797,  by  Austrian  hiis.sars.  This  seems  to  have 
been  a piece  of  villainy  on  the  part  of  an  Austrian  minister  of  state  — carried 
further  by  the  soldiers  than  was  intended,  — for  the  purpose  of  getting  possession 
of  valuable  papers. 

2 This  subsection  is  principally  drawn  from  Ward's  Hisforij,  ii.,  292-330.  For 
the  law  of  7 Anne,  c.  12,  referred  to,  see  Kent,  i.,  183,  Lcct.  ix.  Coke,  4th  Instit., 
153,  Foster’s  Crown-law,  188,  Hale’s  Pleas  of  the  Crown,  and  the  passages  referred 
to  in  the  text  are  cited  by  Ward.  Comp,  also,  Bynkersh.,  De  For.  Leg.,  18,  who, 
after  citing  the  few  examples  to  be  found  of  regular  legal  punishments  of  foreign 
ministers,  says,  “ Novi  aevi  exempla  de  legatis  qui  varie  deliquerant  non  punitis 
tot  ubique  in  annalibus  occurrunt,  ut  ipsa  copia  laboremus.” 


§97.  AGENTS  OF  INTERCOURSE,  ETC.  155 

only  there,  and  inviolability  elsewhere  is  of  a qualified  kind. 
Hence  (1.)  A state  may  refuse  transit  to  a foreign  minister. 
(2.)  He  and  his  goods  may  be  liable  to  seizure.  (3.)  If  he 
enters  a territory  where  he  is  an  enemy,  or  is  bound  to  one 
which  is  hostile  to  that  through  which  he  is  passing,  he  may 
be  seized  and  impeded  from  pursuing  his  journey ; and  all 
this  without  offense  against  international  law.  And  yet  it  ap- 
pears to  be  desirable,  both  on  the  ground  of  the  general  good 
and  on  the  score  of  justice,  that  ambassadors  should  every- 
where be  safe  at  least  from  violence  and  from  arrest,  — should 
enjoy  the  jus  transitus  innoxii. 

Quite  a number  of  examples  might  be  cited,  Avhere  the 
rights  of  legation  have  been  treated  as  of  no  account  by  third 
powers  and  by  enemies.  The  noted  case  mentioned  by  Thucy- 
dides (ii.,  67),  in  which  the  Athenians  caught  in  Thrace  and 
killed  envoys  from  the  Peloponnesians,  on  their  way  to  Persia, 
where  they  hoped  to  bring  the  great  king  into  their  alliance 
against  Athens,  might  have  been  an  act  of  cruelty,  but  was 
not  against  the  modern  jus  inter  gentes.  Similar  to  this  was 
the  case  of  Rincon  and  Fregoze,  envoys  of  Francis  I.  of  France, 
passing  through  the  Duchy  of  INIilan,  the  one  on  his  way  to 
Venice,  the  other  to  the  Porte.  This  was  then  hostile  terri- 
tory, and  they  were  seized  and  killed  seemingly  by  the  pro- 
curement of  the  Governor  of  jMilan,  the  emperor  Charles  V. 
shoAving  indifference  to  the  crime.  “ Alia  qua}stio,”  says  Byn- 
kershoek  (u.  s.),  speaking  of  this  affair,  “ de  jure  legationis, 
alia  de  jure  honestatis.”  Refusals  of  passports,  detentions,  and 
expulsions  from  the  country  haA^e  been  not  uncommon.  Thus 
in  1572,AAdien  all  Frenchmen  in  England  found  Avithout  a pass- 
port Avere  ordered  to  be  arrested,  Du  Croc,  the  French  minis- 
ter to  Scotland,  on  his  Avay  thither,  shared  their  fate,  at  which 
AAdien  the  French  court  complained,  Secretary  Walsingham 
averred  that  he  was  justly  detained  for  Avant  of  a passport. 
In  the  same  century,  a Turkish  ambassador  Avas  arrested  on 
his  AA-ay  through  Venice  to  France,  and  Avhen  the  French  res- 
ident there  claimed  his  liberation,  the  republic  ansAA^ered  that 
a soA'ereign  poAver  is  not  bound  to  recognize  the  function  of  a 


156 


THE  FORMS  AND  THE 


§97. 


public  minister,  unless  his  credentials  are  addressed  to  itself. 
When,  in  1573,  the  Duke  of  Anjou,  aftei-wards  Henry  III.  of 
France,  was  elected  king  of  Poland,  the  ambassadors  who 
were  on  their  Avay  to  announce  his  election,  were  refused  a 
passport  in  Saxony,  and  detained  by  the  Elector.  In  1744, 
IMarshal  Belleisle,  while  passing  through  Hanover  in  the  ca- 
pacity of  an  ambassador,  was  seized  by  tlie  English,  then  at 
Avar  Avith  France,  and  carried  as  a prisoner  to  England.  And 
in  1763,  Count  Wartensleben,  minister  of  the  States-General 
to  a part  of  the  German  poAvers,  Avas  arrested  at  Cassel  as  ex- 
ecutor of  a Avill.  But  there  is  no  right  whateA'er  of  seizing 
an  enemy’s  ambassador  on  neutral  soil  or  a neutral  vessel. 
(Comp.  §§  174,  199.) 

§98. 

The  rank  of  an  ambassador  has  nothing  to  do  Avith  the 
Rank  of  am-  transaction  of  affairs,  — except  so  far  as  the  capacity 
bassadors.  represent  their  soA^ereign  may  be  restricted  to 
those  of  one  class,  — but  only  to  the  ceremonial  of  courts. 
Formerly,  there  AA'as  but  one  class  of  foreign  ministers,  or  at 
most  tAvo  — ambassadors  and  agents  — knoAvn  to  Europe,  but 
since  the  beginning  of  the  eighteenth  century  there  liaA’e  been 
three  grades.  IMoreover,  sometimes  extraordinary  liave  claimed 
precedence  OA^er  ordinary  ministers  of  the  same  class.  The 
quarrels  of  ambassadors  about  rank  led  to  a regulation  in  the 
protocol  of  the  plenipotentiaries  of  the  eight  princif)al  powers 
concerned  in  the  Congress  of  Vienna,  dated  March  19,  1815, 
Avhich  is  to  the  following  effect : — 

“To  prevent  the  emharrassments  Avliich  liave  often  occurred,  and 
which  may  yet  arise  from  the  claims  to  precedence  hetween  different 
diplomatic  agents,  the  plenipotentiaries  of  the  powers  signing  the 
treaty  of  Paris,  have  agreed  to  the  following  articles  ; and  they  feel 
it  their  duty  to  ask  those  of  other  crowned  heads  to  adopt  the  same 
regulation  : — 

Art.  I.  Diplomatic  employes  are  divided  into  three  classes  : 

That  of  ambassadors,  legates,  or  nuncios ; 

Tliat  of  envoys,  ministers,  or  others  accredited  to  sovereigns  ; 

That  of  charges  d’affaires  accredited  to  ministers  charged  with 
foreign  affairs. 


AGENTS  OF  INTERCOURSE,  ETC. 


157 


§ 98. 


Art.  II.  Ambassadors,  legates,  or  nuncios  alone  have  the  repre- 
sentative character. 

Art.  III.  Diplomatic  employes  on  an  extraordinary  mission  have 
not  for  that  reason  any  superiority  of  rank. 

Art.  IV.  Diplomatic  employes  shall  take  rank  among  themselves 
in  each  class  according  to  the  date  of  the  official  notification  of  their 
arrival. 

The  present  rule  shall  bring  with  it  no  innovation  in  regard  to  the 
representatives  of  the  Pope. 

Art.  V.  There  shall  be  in  each  state  a uniform  mode  determined 
upon  for  the  reception  of  the  diplomatic  employes  of  each  class. 

Art.  VI.  The  ties  of  relationship  or  of  family  alliance  between 
courts  give  no  rank  to  their  diplomatic  employes.  The  same  is  true  of 
political  ties. 

Art.  VII.  In  the  acts  or  treaties  between  several  powers  which 
admit  of  the  alternal,  the  lot  shall  decide  between  the  ministers,  as  to 
the  order  to  be  followed  in  signatures.”^ 

In  the  protocol  of  the  Congress  of  Aix-la-Chapelle,  dated 
November  21, 1818,  a new  class  of  ministers  was  constituted  by 
the  plenipotentiaries  of  the  five  great  powers.  They  say  — 

“ To  avoid  the  disagreeable  discussions  which  may  arise  in 
the  future  on  a point  of  diplomatic  etiquette,  which  the  rule 
annexed  to  the  reces  of  Vienna,  by  which  questions  of  rank 
were  regulated,  does  not  seem  to  have  provided  for,  it  is  de- 
cided betAveen  the  five  courts,  that  resident  ministers  accred- 
ited near  them  shall  form,  in  respect  to  their  rank,  an  interme- 
diate class  between  ministers  of  the  second  order  and  charges 
d'affaires." 

According  to  these  rules,  on  Avhich  the  present  practice 
everyw'here  is  based,  there  are  four  classes  of  diplomatic 
agents.  To  the  first  belong  ambassadors  of  temporal  powers, 
together  with  legates  a or  de  latere  and  nuncios  of  the  Fope.^ 

1 By  tlie  ulternat  is  intended  the  pr.nclice,  sometimes  adopted  in  signing  conven- 
tions, of  alternating  in  the  order  of  priority  of  signature,  according  to  some  fixed 
rule,  so  as  to  cut  off  questions  of  rank.  Tlio  lot  has  also  been  used.  Comp. 
Kliiber,  §§  104-106. 

2 There  is  no  distinction  between  legates  a and  legates  de  latere.  These  are 
cardinals,  nuncios  are  not.  Internuncios  form  an  inferior  grade  of  papal  diplomats, 
belonging  to  the  second  or  tliird  class.  From  early  times  the  bishop  of  Rome  had 


158 


THE  FORMS  AND  THE 


§ 98. 

To  the  second,  all  diplomatic  employes  accredited  to  soTereigns, 
whether  called  envoys,  ministers,  ministers  plenipotentiary,  or 
internuncios.  To  the  third,  resident  ministers  accredited  to 
sovereigns.  To  the  fourth,  charges  d’affaires  accredited  to 
ministers  of  foreign  affairs,  with  whom  would  be  reckoned  con- 
suls invested  with  diplomatic  functions.^ 

In  regard  to  the  rank  of  the  minister  who  shall  represent 
a state  at  a particular  court,  the  general  rule  is  that  one  of 
such  rank  and  title  is  sent,  as  has  been  usually  received  from 
the  other  party ; and  that  the  sovereigns  having  a royal  title 
neither  send  ministers  of  the  first  rank  to,  nor  receive  them 
from  inferior  powers.^ 

In  regard  to  diplomatic  etiquette.  Dr.  Wheaton  observes, 
that  while  it  is  in  great  part  a code  of  manners,  and  not  of 
laws,  there  are  certain  rules,  the  breach  of  which  may  hinder 
the  performance  of  more  serious  duties.  Such  is  the  rule  re- 
quiring a reciprocation  of  diplomatic  visits  between  ministers 
resident  at  the  same  court. 

As  for  the  ceremonial  of  courts,  an  ambassador  is  to  regard 
himself  the  representative  of  national  politeness  and  good-will, 
but  to  submit  to  no  ceremony  abroad  which  would  be  ac- 
counted degrading  at  home  ; for  nothing  can  be  demanded  of 
him  inconsistent  with  the  honor  of  his  country.  A question 
somewhat  agitated  among  us,  who  have  no  distinct  costume 
for  the  chief  magistrate,  or  for  those  who  wait  on  him,  is.  In 
what  costume  should  our  diplomatic  agents  appear  at  foreign 
courts  ? In  none  other,  it  may  be  answered,  than  such  as  is 
appropriate  when  we  pay  our  respects  to  the  President  of  the 
United  States,  unless  another  is  expressly  prescribed.  The 
rule  is  to  emanate  from  home,  and  not  from  abroad ; and 

vicars,  delegates,  or  legates,  in  the  countries  of  Europe,  who  had  oversight  of  re- 
ligious affairs  and  some  delegated  jurisdiction.  Legates  for  some  time  had  a per- 
manent office,  which  might  be  attached  to  a particular  bishopric.  Only  in  modern 
days  have  these  representatives  of  the  Pope  become  assimilated  to  the  envoys 
from  temporal  powers.  In  France  by  the  concordat  of  1801,  all  intermeddling 
with  the  affairs  of  the  Gallican  church  was  prohibited  to  them,  by  whatever  name 
they  went. 

1 Comp.  Heffter,  § 208. 


2 Heffter,  § 209. 


§99. 


AGENTS  OF  INTERCOURSE,  ETC. 


159 


no  rule,  it  is  to  be  hoped,  -will  ever  be  given  out,  inconsist- 
ent with  the  severe  simplicity  of  a nation  without  a court. 

An  ambassador  may  be  recalled,  or  sent  home,  or  for  some 
urgent  reason  declare  his  mission  terminated,  or  it  may  expire 
by  its  ovm  limitation,  or  by  the  completion  of  a certain  official 
work,  or  by  the  death  of  the  sovereign  sending  the  ambassa- 
dor, or  of  the  sovereign  to  Avhom  he  is  sent,  or  yet  again  by  a 
change  in  his  diplomatic  rank.  When,  for  any  cause  not  im- 
plying personal  or  national  misunderstanding,  his  mission  is 
terminated,  a letter  of  recall  is  generally  necessary,  which  he 
is  to  deliver  up,  and  ask  for  an  audience  to  take  leave  of  the 
sovereign  or  chief  magistrate  of  the  country  Avhere  he  has  been 
residing.  And  again,  when  his  rank  has  been  changed  without 
removal  from  his  station,  he  presents  a letter  of  recall  and  one 
of  credence,  as  at  first.^ 

The  inviolability  of  foreign  ministers  belongs  also  to  heralds, 
bearers  of  flags  of  truce,  etc.  (Comp.  § 140.)  Couriers  and 
bearers  of  despatches  are  privileged  persons,  as  far  as  is  neces- 
sary for  their  particular  service.  But  agents  attending  to  the 
private  affairs  of  princes,  and  secret  envoys,  when  not  accred- 
ited, are  not  entitled  to  the  privileges  of  ambassadors  under 
the  law  of  nations. 

§ 99- 

The  commercial  agents  of  a government,  residing  in  foreign 
parts,  and  charp'ed  with  the  duty  of  promoting;  the 

. 1 . ^ PI  1 .IIP  Consuls. 

commercial  interests  of  the  state,  and  especially  of 
its  individual  citizens  or  subjects,  are  called  consuls.  These, 
under  the  regulations  of  some  countries  are  of  different  grades, 
being  either  consuls-general,  consuls,  or  vice-consuls,  from 
whom  consular  agents  differ  little.  The  consular  office,  also, 
may  have  a connection  with  that  of  diplomatic  agents.  (§  98.) 

Nothing  exactly  like  the  office  of  consuls  was  known  to  the 
ancients.  The  nearest  resemblance  to  it  was  borne  by  the 
proxeni  of  Greece,  who,  as  their  name  implies,  stood  in  the  rela- 

1 For  all  the  details  of  an  ambassador’s  duty  the  Guide  Diplomatique  of  Ch.  de 
Martens  (4th  edition),  Paris,  18.51,  is  probably  the  best  book.  The  second  volume 
is  a kind  of  complete  letter-writer,  useful,  no  doubt,  to  raw  hands. 


160 


THE  FORMS  AND  THE 


§99. 


tion  of  hospitality  to  a public  body  or  state,  and  like  other 
hosts  and  guests,  might  hand  down  the  office  in  their 

Origin  of  ^ ^ 

the°consuiar  family.  Their  chief  duties  were  to  entertain  and 
honor  the  ambassadors  of  the  foreign  state  within 
the  country  wdiere  they  resided,  to  help  in  distress  its  private 
citizens  doing  business  there,  and  perhaps  to  represent  them 
in  commercial  suits.^ 

The  consuls  of  the  IMiddle  Ages,  so  far  as  they  resembled 
modern  consuls,  seem  to  have  been  of  two  kinds  : first,  a col- 
lege of  judges  or  arbitrators,  whose  functions  were  exercised 
within  the  city  or  state  wdiich  appointed  them  ; and  secondly, 
those  who  were  chosen  to  settle  disputes  among  the  merchants 
of  their  town  who  resided  in  a foreign  town  or  district.  As  for 
the  first  class  it  w^as  not  strange  that  merchants,  who  foi’ined 
guilds  by  themselves,  should  have  magistrates  of  their  oAvn ; 
and  the  name  gAen  to  them,  consuls  of  the  merchants,  or  of 
the  sea,  was  borroAved  from  one  of  the  prevailing  names  of  the 
head  officers  of  many  Italian  cities.-  As  for  the  second,  it  can 
be  traced  back  to  century  XTI.  In  1190,  a charta  of  king  Guy, 
of  Jerusalem,  grants  the  privilege  to  the  merchants  of  Mar- 
seilles of  appointing  consuls  of  their  oaaui  at  Acco  (St.  Jean 
d’Acre),  and  in  1268,  king  Jacob  of  Arragon  (Jay me  I.,  A.  D. 
1213-1276),  gives  to  merchants  of  Barcelona  the  same  privilege 
for  parts  beyond  the  sea  under  his  SAvay.  A charta  of  1328, 
calls  them  in  the  Provencal  dialect  “ regens  dels  mercadiers 
que  van  per  mar.”  ^ Such  consuls  were  either  resident,  as  those 
of  the  large  trading  cities  of  the  Mediterranean,  or  temporary 
during  the  stay  abroad  of  merchants  setting  sail  in  a vessel  to- 
gether. From  a statute  of  Marseilles  of  1253-1255,  in  Pardes- 
sus  (“Lois  Maritimes,”  iv.,  256),  Ave  learn  that  the  appointment 
of  consuls  for  foreign  parts  Avas  there  intrusted  to  the  rector  of 
the  town  Avith  the  syndics  and  guardians  of  the  treasury ; that 
such  consuls,  under  advice  of  their  council,  had  the  power  of 


1 Comp.  Schomann,  G'ri'ec/!.  Alierth.,  il.,  22. 

2 Comp.  Hegel,  Gesch.  d.  Slddteverfass.  von  lialien,  ii.,  205  et  seq. 

® Du  Cange  voce  Consul.  Comp.  Leonhard!  in  Eisch.  u.  Gruber’s  Enctjdop.. 
voce  Consulat. 


§ 100. 


AGENTS  OF  INTERCOUESE,  ETC. 


161 


imposing  fines  and  of  banishing; — subject,  however,  to  the 
review  of  the  home  government  on  complaint  of  the  aggrieved 
person, — that  if  no  consuls  should  have  been  appointed  for  any 
place  where  ten  or  more  Marseilles  merchants  were  residing, 
these  of  themselves  might  make  choice  of  one,  until  the  office 
could  be  filled ; that  the  consul  refusing  to  serve  was  finable  ; 
and  that  no  man  enjoying  special  privileges  in  the  place,  anti 
no  one  but  a wholesale  dealer,  could  hold  the  office.  The  con- 
sul, if  parties  are  willing  to  submit  their  differences  to  him,  is 
directed  to  call  in  two  assistants.  The  fines  which  he  may 
exact  from  parties  whose  differences  he  has  settled  are  to  go, 
half  to  him  and  half  to  the  treasury  of  Marseilles.  Important 
information  in  regard  to  this  office  is  also  given  by  the  statutes 
of  Ancona  of  the  year  1397.^ 


§ 100. 

The  functions  of  modern  consuls  are  determined  by  special 
treaties  and  by  the  laws  of  their  own  land.  Among 
their  usual  duties  in  Christian  lands,  besides  those  of  ana  duties 

. , . of  consuls. 

general  watchfulness  over  the  commercial  interests 
of  their  nation,  and  of  aid  to  their  countrymen  in  securing 
their  commercial  rights,  may  be  enumerated  the  duties  — 

Of  legalizing  by  their  seal,  for  use  within  their  own  country, 
acts  of  foreign  judicial  or  other  functionaries,  and  of  authen- 
ticating marriages,  births,  and  deaths,  among  their  country- 
men, within  their  consular  districts. 

Of  receiving  the  protests  of  masters  of  vessels,  of  granting 
passports,  and  of  acting  as  depositaries  of  sundry  ship’s  papers. 

Of  reclaiming  deserters  from  vessels,  providing  for  destitute 
sailors,  and  discharging  such  as  liave  been  cruelly  treated. 

Of  acting  on  behalf  of  the  owners  of  stranded  vessels,  and 
of  administering  on  the  personal  property  left  within  their  con- 
sular districts  by  deceased  persons,  Avhere  no  legal  represent- 
ative is  at  hand,  and  where  law  or  treaty  permits,  and  thus  of 
representing  them,  it  may  be,  before  the  courts  of  his  district. 

Our  laws  require  masters  of  vessels,  on  entering  a port  for 

1 See  Pardessus,  u.  s.,  v.,  108,  116,  rt  seq. 

n 


162 


THE  FORMS  AND  THE 


§ 100. 


traffic,  to  lodge  with  the  consul  their  registers,  sea-letters,  and 
passports ; and  make  it  a consul’s  duty  to  send  destitute  sea- 
men home  at  the  public  expense. 

In  general,  throughout  Christian  lands,  the  principle  of  the 
control  of  the  laws  and  courts  over  foreigners  with 

Jurisdiction  . . . , • c n 

of  consuls  the  exemption  of  certain  privileged  persons,  is  fully 
of^iiristen-  established.  But  as  Christian  states  were  reluctant 
to  expose  their  subjects  to  the  operation  of  outlandish 
law  and  judgments,  they  have  secured  extensively  by  treaty  to 
their  consuls,  in  Mohammedan  and  other  non-Christian  lands, 
the  function  of  judging  in  civil  and  even  in  criminal  cases, 
where  their  own  countrymen  are  concerned.  In  such  cases, 
according  to  the  laws  of  France,^  the  consul  is  assisted  by  two 
French  residents.  “ The  Frank  quarter  of  Smyrna  is  under 
the  jurisdiction  of  European  consuls,  and  all  matters  touching 
the  rights  of  foreign  residents  fall  under  the  exclusive  cogni- 
zance of  the  respective  consuls.”  By  our  treaty  of  1833,  with 
the  Sultan  of  Muscat,  our  consuls  there  are  exclusive  judges 
of  all  disputes  between  American  citizens  ; and  by  our  treaties 
with  China  in  1844  and  1858.  American  citizens  committing 
crimes  in  China  are  subject  to  be  tried  and  punished  only  by 
the  consul,  or  other  public  functionary,  empowered  so  to  act 
by  our  laws.  Controversies  between  American  citizens  and 
Chinese  may  be  brought  in  the  last  instance  before  a mixed 
court.  (Treaty  of  1844,  Art.  24.)  Disputes,  also,  between  citi- 
zens of  the  United  States,  or  between  them  and  other  foreign 
residents,  are  not  to  be  tried  by  the  laws  and  courts  of  China, 
but  in  the  former  case  come  before  our  authorities,  and  in  the 
other  are  to  be  regulated  by  treaties  with  the  respective  gov- 
ernments to  which  the  other  parties  at  law  are  subject.^  The 
treaty  of  1858  Avith  Japan  provides  that  the  courts  of  the  of- 
fending party  are  to  judge,  and  that  creditors  must  sue  in  the 
courts  of  their  debtors.  (Art.  VI.)  Comp.  § 69. 

Consuls  on  exhibiting  proof  of  their  appointment,  if  not 
objectionable  persons,  receive  an  exequatur,  or  permission  to 

* Pardessiis,  Droit  Commercial,  vi.,  294  et  seq. 

2 Corap.  Kent,  i.,  45,  Lect.  ii. ; Wheaton,  Elements,  ii.,  2,  § 11. 


§ 100. 


AGENTS  OF  INTEKCOURSE,  ETC. 


163 


discharge  their  fimctions  within  the  limits  prescribed,  which 
permission  can  be  withdrawn  for  any  misconduct.^ 

^ , Privileges 

They  have,  during  their  term  of  office,  according  and  status 

° . . . 1 . .,  , ° of  consuls. 

to  the  prevailing  opinion,  no  special  privileges  be- 
yond other  foreigners,  and  are  thus  subject  to  the  laws,  both 
civil  and  criminal,  of  the  country  where  they  reside.  They 
enjoy  no  inviolability  of  person,  nor  any  immunity  from  juris- 
diction, unless  it  be  given  to  them  by  special  treaty.  Heffter, 
however  (§  244),  makes  the  safe  statement  that  they  possess 
“ that  inviolability  of  person  which  renders  it  possible  for  them 
to  perform  their  consular  duties  without  personal  hindrance.” 
Vattel  (ii.,  2,  § 34)  goes  still  farther.  A sovereign,  says  he, 
by  receiving  the  consul,  “ tacitly  engages  to  allow  him  all  the 
liberty  and  safety  necessary  in  the  proper  discharge  of  his 
functions.”  His  functions  require  that  he  be  “ independent  of 
the  ordinary  criminal  justice  of  the  place  where  he  resides,” 
and  “ if  he  commit  any  crime,  he  is,  from  the  respect  due  to 
his  master,  to  be  sent  home.”  But  the  best  authorities  agree 
that  it  is  at  the  option  of  a sovereign,  Avhether  the  consul  shall 
have  the  benefit  of  such  comity  or  not,^  and  it  seems  incon- 
sistent with  modern  ideas  of  the  territorial  jurisdiction  of  the 
sovereign  that  a man  who  is  very  generally  a merchant  should 
be  exempt  from  the  law  Avhich  applies  to  people  of  his  class 
about  him.  Chancellor  Kent  cites  Warden,  as  producing 
authorities  to  show  that  in  France  “ a consul  cannot  be  prose- 
cuted without  the  previous  consent  of  his  government ; ” but 
Foelix  sets  the  matter  in  the  following  light:®  that  by  a con- 
vention of  France  with  Spain  in  1769,  the  consuls  of  the  latter, 
being  Spanish  subjects,  obtained  immunity  from  arrest,  except- 

1 Consuls  sometimes  have  put  forward  most  extravagant  pretensions.  In  1793, 
the  French  consuls  assumed  the  power  to  set  up  admiralty  courts  in  the  United 
States,  and  to  adjudicate  upon  prizes  brought  in  by  French  privateers.  Our  gov- 
ernment threatened  to  witlulraw  their  exequatur,  unless  they  gave  up  their  preten- 
sions. One  of  them,  M.  Duplaine,  at  Boston,  rescued  with  an  armed  force  from 
an  officer  of  the  United  States,  a vessel  which  he  in  the  course  of  his  duty  had 
arrested,  and  his  exequatur  was  revoked.  — T.  S. 

2 Comp,  among  others,  Bynkersh.,  De  For.  Leg.,  10,  near  the  end.  ■ 

“ Foelix,  i.,  406,  § 221. 


164 


FOEMS  AND  AGENTS  OF  INTERCOURSE. 


§ 100. 


ing  for  atrocious  crime  and  for  commercial  obligations.  This 
covered  only  “debts  and  other  civil  cases,  not  implying  crime 
or  almost  crime,  and  not  growing  out  of  their  mercantile 
character.”  Since  that  time  all  other  nations,  with  whom 
France  has  stipulated  that  their  consuls  shall  be  placed  on 
the  footing  of  the  most  favoi’ed  nation,  may  claim  the  same 
immunity,  “ but  with  this  exception,  consuls,  being  foreign 
subjects,  are  to  be  treated  in  Fi'ance  like  all  other  members  of 
the  same  nation.”  ^ 

Although  a consul  has  none  of  the  privileges  of  an  ambas- 
sador, yet  an  insult  to  his  person,  or  an  attack  on  his  place 
of  official  business,  involves  more  of  insult  to  his  country 
than  similar  treatment  of  an  ordinary  stranger  could  do.  He 
has  in  fact  something  of  a representative  character,  and  calls 
for  the  protection  of  his  government  in  the  exercise  of  his 
functions. 

Consuls  in  the  JMohammedan  countries,  owing  to  the  fact 
that  formerly  diplomatic  intercourse  passed  chiefly  through 
their  hands,  and  to  their  oflicial  character  of  protectors  of 
their  countrymen  in  those  lands,  have  had  nearly  the  same 
rights  as  ambassadors,  including  tlie  right  of  worship,  and  in 
a degree  that  of  asylum. 

By  the  practice  of  some  nations,  only  a native  can  be 
u'hom.'iy  ciuployed  to  attend  to  the  commercial  interests  of 
be  consuls,  p-g  country  in  foreign  ports.  The  United  States, 
however,  have  hitherto  freely  employed  foreigners  in  that 
capacity,  especially  in  ports  where  our  own  commerce  is 
small.^ 

1 About  1854,  M.  Dillon,  French  consul  at  San  Francisco,  refused  to  appear 
and  testify  in  a criminal  case.  The  Constitution  of  the  United  States  (Amend- 
ment VI.),  in  criminal  cases  grants  accused  persons  compulsor}'  proce.ss  for  obtain- 
ing witnesses,  while  our  treaty  of  185.3,  with  France  (Art.  II.)  says  that  consuls 
“ shall  never  he  compelled  to  appear  as  witnesses  before  tlie  courts.”  Thus  there 
was  a conflict  between  the  Constitution  and  the  treaty,  and  it  was  held  that  the 
treaty  was  void.  After  long  correspondence  the  French  consuls  were  directed  to 
ohe}'  a .snbpccna  in  future.  Sec  Dana  on  Wheaton,  note  185,  v. — T.  S. 

2 For  the  law.s  of  the  United  States  relating  to  consuls,  their  privileges,  dutie.s, 
and  rights  of  jurisdiction,  and  for  the  treaty  stipulations  concerning  them,  we 
refer  to  tlie  Tleg'iiiilln ix  prcxcrihed  for  the  use.  of  the  Consular  Serv'ce  of  the  United 
States,  puhli.'hed  i,i  1870,  under  the  direction  of  the  Secretary  of  State. 


CHAPTER  V. 


OF  THE  EIGHT  OF  CONTKACT  AND  ESPECIALLY  OF  TEEATIES. 

§ 101. 

A CONTRACT  is  one  of  the  highest  acts  of  human  free  will: 
it  is  the  will  binding  itself  in  regard  to  the  future,  of  contract 
and  surrendering  its  right  to  change  a certain  ex-  between^ 
pressed  intention,  so  that  it  becomes  morally  and 
jurally  a wrong  to  act  otherwise ; it  is  the  act  of  two  parties  in 
which  each  or  one  of  the  two  conveys  power  over  himself  to 
the  other  in  consideration  of  something  done  or  to  be  done  by 
the  other.  The  binding  force  of  contracts  is  to  be  deduced 
from  the  freedom  and  foresight  of  man,  Avhich  would  have 
almost  no  sphere  in  society  or  power  of  cooperation,  unless 
trust  could  be  excited.  Trust  lies  at  the  basis  of  society ; 
society  is  essential  for  the  development  of  the  individual; 
the  individual  could  not  develop  his  free  forethought,  unless 
an  acknowledged  obligation  made  him  sure  in  regard  to 
the  actions  of  others.  That  nations,  as  well  as  individuals, 
are  bound  by  contract,  will  not  be  doubted  when  we  remem- 
ber that  they  have  the  same  properties  of  free  will  and  fore- 
cast ; that  they  could  have  no  safe  intercourse  otherwise,  and 
could  scarcely  be  sure  of  any  settled  relations  towards  one 
another  except  a state  of  war,  and  that  thus  a state  of  so- 
ciety, to  which  the  different  needs  and  aptitudes  of  the  parts 
of  the  world  iuvite  men  would  be  impossible.  We  have 
already  seen,  that  without  this  power  a positive  laAV  of  nations 
could  not  exist,  Avhich  needs  for  its  establishment  the  consent 
of  all  Avho  are  bound  by  its  provisions.  National  contracts  are 
even  more  solemn  and  sacred  than  private  ones,  on  account  of 


166 


OF  THE  RIGHT  OF  CONTRACT 


§ 101. 


tlie  great  interests  involved,  of  the  deliberateness  with  which 
the  obligations  are  assumed,  of  the  permanence  and  generality 
of  the  obligations,  — measured  by  the  national  life,  and  includ- 
ing thousands  of  particular  cases,  — and  of  each  nation’s  call- 
ing, under  God,  to  be  a teacher  of  right  to  all  within  and 
without  its  borders. 

Contracts  can  be  made  by  states  with  individuals  or  bodies 
With  whom  of  individuals,  or  with  other  states.  Contracts  be- 
make^cou-  twecii  states  iiiay  be  called  conventions  or  treaties, 
tracts?  Among  the  species  of  treaties  those  which  put  an  end 

to  a war  and  introduce  a new  state  of  intercourse,  or  treaties 
of  peace,  Avill  be  considered  here,  only  so  far  as  they  partake 
of  the  general  character  of  treaties  : their  relations  to  Avar  Avill 
be  considered  in  the  chapter  devoted  to  that  subject. 


§ 102. 

Treaties,  alloAved  under  the  laAV  of  nations,  are  uncon- 
Lawfuitrca-  Strained  acts  of  independent  powers,  placing  them 
ties, what?  obligation  to  do  something  Avhich  is  not 

Avrong,  or,  — 

1.  Treaties  can  be  made  only  by  the  constituted  authorities 
of  nations,  or  by  persons  specially  deputed  by  them  for  that 
purpose.  An  unauthorized  agreement,  or  a sponsio,  like  that 
of  the  consul  Postumius  at  the  Caudine  Forks,  does  not  bind 
tlie  sovereign,  — it  is  held,  — for  the  engager  had  no  poAver  to 
couA'ey  rights  belonging  to  another.^  And  yet  it  may  be  mor- 
ally Avrong  in  a high  degree  for  the  sovereign  to  violate  such 
an  engagement  of  a subordinate  ; for  it  might  be  an  act  of 
extreme  necessity,  to  AAdiich  the  usual  forms  of  governmental 
proceedings  Avould  not  apply.  Moreover  the  actions  of  mil- 
itary or  naval  commanders  must  be  to  a certain  extent  left 
Avithout  positive  restrictions,  and  usage  might  be  pleaded  for 
many  transactions  of  this  nature.  Again,  from  the  nature  of 
the  case  a faction,  a province,  or  an  integral  part  of  a close 
confederation  has  no  treaty-making  power ; although  a loose 
confederation,  like  the  Germanic,  might  exist,  Avhile  conceding 
1 Comp.  V.'ittcl,  book  ii.,  §§  208-212. 


§ 103.  AND  ESPECIALLY  OF  TKEATIES.  167 

such  a prerogative  to  its  members.  Individuals,  or  other 
dependent  bodies,  can  make  commercial  arrangements  with  a 
foreign  power,  unless  their  laws  forbid  ; but  the  arrangements 
apply  to  a particular  case,  and  obligate  none  else ; they  are 
like  any  other  private  contracts ; nor  lias  a government  over 
such  a contracting  party  anything  to  do  in  the  premises,  save 
to  protect  and,  if  expedient,  to  afford  its  redress  against  injus- 
tice. Political  engagements,  or  such  as  affect  a body  politic, 
can  be  made  only  by  political  powers.  And  the  actual  sove- 
reign alone,  or  a power  possessing  the  attributes  of  sovereignty 
at  the  time,  can  bind  a nation  by  its  engagements. 

§ 103. 

2.  If  the  power  of  a sovereign  or  of  a government  is  limited 
by  a ffround-law,  Avritten  or  uiiAvritten,  a treaty  can- 

••  XT  Treaties 

not  override  that  constitution.  No  one  can  lawfully  nmdebya 

• 1 • 1 T c • ^ ^ ^ eovereign 

exercise  poAver,  Avliich  does  not,  of  right,  belong  to  with  limited 

^ ^ ^ powers. 

him.  Thus  under  constitutional  forms,  Avhere  the 
treaty-making  poAver  is  placed  in  particular  hands,  no  others 
can  exercise  it,  and  Avhere  it  is  limited  in  extent,  it  cannot  be 
laAvfiilly  exercised  beyond  that  limitation.  Where,  hoAvever, 
an  unlimited  poAver  of  making  treaties  is  given  to  a govern- 
ment, or  to  some  department  of  it,  the  public  domain  and  prop- 
erty may  be  alienated,  or  individual  rights  may  be  sacrificed 
for  public  purposes.^  And  yet  even  the  most  absolute  despot 
may  make  treaties,  Avhich  neither  his  subjects  nor  third  powers 
ought  to  regard  as  binding.  Could  the  house  of  Romanoff,  for 
instance,  resign  the  throne  of  Russia  to  Avhom  it  pleased  ? The 
true  view  here  is,  that  the  province  of  absolutism  is  not  to 
chspose  of  the  national  life,  but  to  maintain  it  Avithout  those 
checks  on  the  exercise  of  power  Avhich  exist  elseAvhere.  No 
power,  however  uncontrolled,  Avas  given  to  destroy  a nation,  or 
can  laAvfully  do  so. 

An  interesting  inquiry  here  arises,  whether  the  treaty-mak- 
ing power  in  a federative  union,  like  the  United  States,  can 
alienate  the  domain  of  one  of  the  States  Avithout  its  consent. 


1 Kent,  i.,  166,  167. 


168 


OF  THE  RIGHT  OF  CONTRACT 


§ 103. 


Our  government,  when  the  northeastern  boundary  was  in  dis- 
pute, declared  that  it  had  no  power  to  dispose  of  territory 
claimed  by  the  State  of  hlaine.  “ The  better  opinion  would 
seem  to  be,”  says  Chancellor  Kent,  “ that  such  a power  of  ces- 
sion does  reside  exclusively  in  the  treaty-making  power  under 
the  Constitution  of  the  United  States,  although  a sound  dis- 
cretion would  forbid  the  exercise  of  it  without  the  consent  ” of 
the  interested  State.  But  it  might  be  asked,  whether  the 
treaty-making  power  is  not  necessarily  limited  by  the  existence 
of  states,  parties  to  the  confederation,  having  control  for  most 
purposes  over  their  own  territory.  Could  the  treaty-making 
power  blot  out  the  existence  of  a State  which  helped  to  create 
the  Union,  by  ceding  away  all  its  domain  ? Such  fearful  power 
was  never  lodged  in  the  general  government  by  the  Constitu- 
tion and  could  never  be  lawfully  exercised  in  the  ordinary  con- 
tingencies of  the  confederation.  Only  in  extreme  cases,  where 
the  treaty-making  power  is  called  upon  to  accept  the  fact  of 
conquest,  or  to  save  the  whole  body  from  ruin  by  surrendering 
a part,  could  such  an  exercise  of  power  be  justified.  (Comp. 
§§  53,  IGl.) 

§ 104. 

3.  A treaty,  in  which  the  treaty-making  poAver  flagitiously 
sacrifices  the  interests  of  the  nation  Avhich  it  repre- 

Trcaties  ob-  , . , . „ _ . , 

tainedby  seiits,  lias  110  binding  force.  In  this  case  tlie  treacher- 

foul  means  o i ^ i • i 

not  binding  ous  act  ot  tlie  nfovemment  cannot  be  lustly  regarded 

on  a nation.  n i i i n i • 

as  the  act  ot  the  nation,  and  the  forms  ought  to  give 
Avay  to  the  realities  of  things.  IMoreover,  the  other  party  to 
the  treaty  ought  not  to  clraAV  advantage  from  the  iniquity  of 
an  agent  Avhoin  it  has  itself  tempted.  What,  for  example,  Avas 
the  cession  Avorth,  Avliich  the  king  of  Spain  made  to  Bonaparte 
in  1808  of  his  rights  to  the  croAvn,  and  Avho  could  think  him- 
self bound  by  such  an  act,  CA^en  if  it  lay  Avithin  the  competence 
of  the  sovereign  to  abdicate  his  poAver  in  ordinary  cases. 

Nor  those  4.  Treaties  obtained  by  false  representations,  or 

obtained  I’y  . „ ....  rrii  i ^ n ■ i 

false  state-  by  foi’ce,  are  not  binding.  Ihe  rule  tor  nations  here 
force.  is  the  Slime  AAdiich  in  all  laAV  holds  good  for  indiA'id- 
uals.  In  the  former  case,  the  consideration  Avhich  led  to  the 


§ 104. 


AND  ESPECIALLY  OF  TREATIES. 


169 


making  of  the  treaty  did  not  exist,  but  a false  statement  was 
purposely  made  in  order  to  bring  about  the  contract.  In 
the  latter  case,  the  engagement  was  not  the  free  act  of  an 
independent  will. 

But  this  rule  will  not  invalidate  a treaty,  where  one  of  the 
parties  acts  under  a wrong  judgment,  or  has  a false  impression 
for  which  the  other  is  not  responsible.  For  the  consideration 
is  not  real  objective  good,  but  the  expectation  of  good,  which 
may  not  be  realized.  Having,  under  the  sway  of  this  expecta- 
tion, influenced  the  conduct  of  the  other  party,  he  has  brought 
himself  under  obligation.  Thus,  if  a garrison  capitulates  un- 
der a mistake  as  to  the  force  of  the  besieging  army  or  the  prob- 
ability of  relief,  and  discovers  the  mistake  before  the  capitula- 
tion takes  effect,  this  is  still  binding.  Again,  when  we  speak 
of  force  invalidating  a treaty,  we  must  intend  unjust  duress  or 
violence  practiced  on  the  sovereign  or  the  treaty-making  agent. 
A disadvantageous  treaty  made  to  prevent  further  conquest,  or 
to  release  the  sovereign  or  others  from  lawful  captivity,  is  as 
binding  as  any  other ; for  a fair  advantage  of  war  has  been 
used  to  obtain  terms  which  otherwise  would  not  have  been 
conceded.  Thus  when  Pope  Paschal  II.  was  taken  prisoner  in 
1111,  by  the  Emperor  Henry  V.,  or  John  of  France,  in  1356, 
by  EdAvard  HI.  of  England  at  Poitiers,  or  Francis  I.  in  1525, 
at  Pavia,  by  the  officers  of  Charles  V.,  the  treaties  made  to 
procure  their  liberty  Avere  respectively  binding,  so  far  as  noth- 
ing immoral  was  iiiA-olved  in  their  articles,  and  the  persons  mak- 
ing the  treaties  did  not  transcend  their  poAvers.  In  the  case 
of  Paschal,  the  feeling  of  the  age,  or  at  least  of  the  stricter 
party  in  the  church,  regarded  the  practice  of  lay  investitures, 
to  Avhich  he  gave  his  consent,  as  something  irreligious  ; and  it 
AA'as  claimed  that  he  Avas  under  compulsion  Avhen  he  performed 
the  act.  But  Avhy,  if  he  renounced  his  engagement  as  con- 
strained and  unlaAvful,  did  he  not  return  to  his  imprisonment  ? 
John,  Avith  true  feudal  honor,  Avhen  a prince  of  his  blood  vio- 
lated his  stipulation,  put  himself  again  into  the  hands  of  the 
English  king;  Avhile  Fi’ancis,  unlike  his  ancestor,  and  unlike 
St.  Louis,  Avho  kept  his  faith  Avith  the  Saracens,  given  almost 


170  OF  THE  EIGHT  OF  CONTRACT  § 104 

in  fear  of  death,  neither  stood  to  his  engagements,  nor  went 
back  into  cajDtivity  at  IMadrid.  In  the  case  of  Francis,  it  may 
be  doubted  whether  the  estates  of  Burgundy  could  be  trans- 
ferred without  their  consent  to  another  sovereign  ; feudal  law, 
not  then  extinct,  would  not  give  such  power  into  the  hands  of 
tlie  suzerain  without  the  vassal’s  concurrence.  But  why  did 
he  make  a treaty  if  not  free,  and  why,  if  not  able  to  execute 
it,  did  he  not  restore  all  things,  as  far  as  in  him  lay,  to  their 
condition  anterior  to  the  treaty  ? ^ 

§ 105. 

5.  A treaty  can  never  obligate  to  do  an  unlawful  act,  for 
Treaties  to  neither  party  can  give  consent  to  do  evil  in  expecta- 
fawfui  act  ^ good  to  be  leceived.  Thus  a treaty  contra- 

not  bmumg.  (ij^ting  a prior  tieaty  with  another  poAver  is  void,  and 
if  observed,  an  act  of  injustice.  Thus,  too,  a combination  to 
commit  injustice,  for  example,  to  put  doAvn  liberty  or  religion, 
or  to  conquer  and  appropriate  an  independent  country,  as 
Poland,  is  a crime  Avhich  no  formalities  of  treaty  can  sanction. 
This  rule,  it  is  tiue,  is  not  one  of  much  practical  application  to 
the  concerns  of  nations,  for  beforehand,  most  of  the  iniquities 
of  nations  are  varnished  over  by  some  justifying  plea,' and  the 
only  tribunal  in  the  case  is  the  moral  indignation  of  mankind, 
while,  after  the  crime  has  triumphed,  mankind  accept  the  neAV 
order  of  things,  ratlier  than  have  a state  of  perpetual  AA^ar. 
But  the  rule  is  useful,  so  far  as  it  sanctions  the  protests  of  in- 
nocent states,  and  their  combinations  to  resist  the  poAver  and 
danger  of  combined  injustice. 


§ 106. 

Treaties  are  of  various  kinds.  They  may  define  private  re- 
Kimiof  lations,  like  commercial  treaties,  or  political  relations, 
treaties.  They  may  be  temporary,  or  of  unlimited  duration, 
and  among  the  latter,  some,  or  some  provisions  Avhich  they  con- 
tain, may  be  dissolved  by  Avar,  and  others,  intended  to  regulate 
intercourse  during  Avar,  may  be  perpetual.  They  may  secure 
1 Comp.  Flassau,  Diplom.  Frangaise,  i.,  323  seq.,  and  Ward’s  History,  ii.,  361. 


§ 107. 


AND  ESPECIALLY  OF  TEEATIES. 


171 


cooperation  merely,  as  treaties  of  alliance,  or  a closer  union,  as 
confederations,  or  the  uniting  of  two  or  more  states  into  one. 
All  the  intercourse  of  nations  may  come  under  the  operation 
of  treaties  ; and  they  may  reach  to  the  explanation  or  altera- 
tion— as  far  as  the  parties  are  concerned — of  international 
law.  Hence  the  importance  of  collections  of  treaties,  and  of 
the  history  of  diplomatic  intercourse. 

Besides  tliese  leading  divisions,  treaties  may  differ  from  one 
another  in  many  ways.  They  may,  for  instance,  be  made  by 
the  treaty-making  powers  in  person,  or  by  their  agents,  may 
be  open  or  secret,  or  with  articles  of  both  kinds,  may  be  abso- 
lute or  conditioned,  may  contain  promises  of  performance  on 
one  or  on  both  sides,  may  be  attended  or  not  with  a pecu- 
niary payment,  be  revocable  at  the  Avill  of  either  party  or  ir- 
revocable. They  may  be  principal  or  accessory,  preliminary  or 
definitive.  They  may  be  simple,  consisting  of  one  engage- 
ment, or  contain  many  articles,  some  leading,  others  subordi- 
nate. They  may  contain  new  provisions,  or  confirm  or  ex- 
plain old  treaties.  Thus  some  of  the  more  important  treaties, 
as  those  of  Westphalia  and  Utrecht,  have  been  confirmed 
many  times  over.^ 

§ 107. 

Treaties  of  alliance  may  be  defensive  or  offensive,  or  both. 
Defensive  treaties^  as  generally  understood,  are  made  Treaties,  i. 
to  secure  the  parties  to  them  against  aggression  from  aii'ance. 
other  states.  They  may,  also,  aim  at  the  maintenance  of  in- 
ternal quiet,  or  of  neutrality  amid  the  conflicts  of  neighbor- 
ing powers.  To  attempt  to  gain  any  of  these  objects  is  not 
necessarily  contrary  to  the  law  of  nations  or  to  natural  justice. 
IMutual  aid,  indeed,  against  the  disturbers  of  internal  quiet, 
may  secure  an  absolute  government  against  popular  revolu- 
tions in  favor  of  liberty  (§  42),  but  if  a confederation  or 
alliance  may  secure  to  its  members  the  enjoyment  of  free 
institutions,  there  is  no  reason,  as  far  as  international  law  is 
concerned,  why  institutions  of  an  opposite  kind  may  not  sup- 
port themselves  in  the  same  way.  The  law  of  nations  we 
1 Comp.  Kliiber,  §§  146,  147. 


172 


OF  THE  RIGHT  OF  CONTRACT 


§ 107. 


have  seen,  shows  no  preference  for  any  one  kind  of  govern- 
ment, but  acknowledges  all  established  governments  as  having 
a right  to  exist.  Treaties  of  neutrality  are  reciprocal  engage- 
ments to  have  no  part  in  the  conflicts  between  other  powers,  — 
to  remain  at  peace  in  an  apprehended  or  an  actual  war.  They 
are  suggested  by,  and  prevent  the  evils  of  that  interference  of 
nations  in  each  other’s  affairs,  for  the  preservation  of  the  bal- 
ance of  power  or  the  safety  of  the  parties  interfering,  which 
is  so  common  in  modern  history.  Alliances  at  once  offensive 
and  defensive  have  one  of  the  usual  and  more  important  char- 
acteristics of  confederations. 

Sometimes  a treaty-engagement  is  made  to  do  a certain 
specific  act  of  limited  extent,  in  contemplation  of  a possible 
future  state  of  war,  as  to  supply  a certain  amount  of  money 
or  number  of  troops.  The  party  entering  into  such  a stipula- 
tion, if  the  agreement  was  genei-al,  and  had  no  special  refer- 
ence to  a particular  war  with  a particular  nation,  is  held  not  to 
have  taken  a belligerent  attitude!  Much,  hoAvever,  rvould 
depend  upon  the  amount  of  assistance  promised,  and  it  stands 
open  to  the  party  injured  by  such  aid  afforded  to  his  rival, 
to  regard  it  as  an  act  of  hostility  or  not,  as  he  may  think 
best. 

A treaty  of  alliance  can  bind  the  parties  to  no  injustice 
(§  105),  nor  justify  either  of  them  in  being  accessory  to  an 
act  of  bad  faith  on  the  part  of  another.  Hence  a defensive, 
still  more  an  offensive  alliance,  can  only  contemplate,  if  huvful, 
the  warding  off  of  intended  injustice.  Where  justice  is  doubt- 
ful, the  benefit  of  the  doubt,  it  is  held,  ought  to  accrue  to  the 
ally.  It  is  held,  also,  that  in  cases  Avhere  compliance  is  plainly 
useless,  or  avouIcI  be  ruinous,  an  ally  is  not  obliged  to  aid  his 
friend.  With  regard  to  defensive  alliances,  the  question  may 
arise,  Avhat  constitutes  a defensive  Avar,  since  certain  Avars 
have  been  defensive  in  spirit,  though  offensive  in  form.  The 
best  ansAver  seems  to  be,  that  clearly  menaced  injustice  may 
be  prevented  by  an  ally  ; — that  he  ought  not  to  Avait  until 
the  formality  of  striking  the  bloAV  arrives,  but  fulfill  his  obli- 
1 Vattel,  iii.,  § 97  ; Wheaton’s  Elements,  iii.,  2,  § 14. 


§ 108.  AND  ESPECIALLY  OF  TREATIES.  173 

gation  by  giving  aid,  as  soon  as  it  is  needed.^  Thus,  a defen- 
sive alliance  scarcely  differs  from  a justifiable  offensive  one. 

: § 108. 

A confederation  is  a union,  more  or  less  complete,  of  two 
or  more  states  which  before  were  independent.  It  2.  oi  eon- 
1 aims  to  secure  a common  good,  external,  as  mutual 

protection  against  powerful  neighbors,  or  internal,  as  com- 
merce and  community  of  justice  by  means  of  common  insti- 
tutions. If,  by  the  terms  of  the  league,  the  pai-ts  are  so  far 
I united  together  as  to  act  through  one  organ  in  all  external 

i relations,  and  if  this  organ  has  many  of  the  properties  of 

sovereignty  in  internal  affairs,  the  resulting  government  is  not 
a league  of  states  (a  Staatenbnnd,  as  the  Germans  call  it), 
but  a state  formed  by  a league  (a  Bundesstaat).  But  the  two 
have  no  exact  limits  to  separate  them. 

States  have,  as  far  as  others  are  concerned,  an  entire  right 
to  form  such  leagues,  or  even  to  merge  their  existence  in  a 
new  state,  provided,  however,  that  no  obligation  towards  a 
third  power  is  thereby  evaded,  and  no  blow  is  aimed  at  its 
safety.  When  so  constituted,  a union  must  be  respected  by 
other  poAvers,  who  are  henceforth  to  accommodate  their  dip- 
lomatic and  commercial  intercourse  to  the  new  order  of 
things.  If  any  of  the  members  came  into  the  union  AA'ith 
debts  on  their  heads,  the  obligation  to  pay  them  is  not  can- 
celled by  the  transaction  ; or  if  in  any  other  Avay  OAving  to 
the  neAV  state  of  things  foreign  states  are  Avronged,  compen- 
sation is  due.  In  the  opposite  case,  Avhen  a league  or  union 
is  dissolved,  the  debts  still  remain,  justice  requiring  not  only 
that  they  be  divided  between  the  members  in  a certain  ratio, 
but  also  that  each  of  the  members  be  in  some  degree  holden 
to  make  good  the  deficiencies  of  the  others.  Comp.  § 38. 

1 Comp.  Wheaton,  Elements,  u.  s.,  iii.,  2,  § 13. 


174 


OF  THE  RIGHT  OF  CONTRACT 


§ 109. 


§ 109- 

Treaties  of  guaranty  ^ are  to  be  classed  among  treaties  as 
3 Treaties  rospects  tlieii’  form,  and  as  it  respects  their  ob- 
and'^gi^^raa’  among  the  means  of  securing  the  observance 

of  treaties.  They  are  especially  accessory  stipula- 
tions, sometimes  incorporated  in  the  main  instru- 
ment, and  sometimes  appended  to  it,  in  which  a third  power 
promises  to  give  aid  to  one  of  the  treaty-making  powers,  in 
case  certain  specific  rights,  — all  or  a part  of  those  conveyed 
to  him  ill  the  instrument,  — are  violated  by  the  other  party. 
We  say  certain  specific  rights,  because  an  engagement  to  af- 
ford assistance  against  the  violation  of  all  rights,  would  be,  as 
Kliiber  remarks,  a league  or  treaty  of  alliance.  A guaranty 
may  refer  to  any  rights  whatever,  for  instance,  to  the  payment 
of  a sum  of  money  stipulated  in  a treaty,  as  when  Russia,  in 
1776,  guaranteed  a Polish  loan  of  500,000  ducats;  to  the  se- 
cure possession  of  ceded  territory,  to  the  integrity  of  a state, 
as  the  Frencli  emperor  guaranteed  the  integrity  of  the  Aus- 
trian states  in  the  peace  made  at  Vienna  in  1809  ; to  the  rights 
of  succession,  as  the  famous  pragmatic  sanction  of  the  Emperor 
Charles  VI.  (Append,  ii.,  1735)  was  guaranteed  by  Spain, 
France,  the  empire,  etc.,  and  the  succession  of  the  Bourbons 
in  Spain  by  Austria,  in  the  treaty  of  Vienna,  1735  (Append, 
ii.) ; to  religious  franchises,  as  in  the  guaranties  of  the  trea- 
ties of  Westphalia;  to  the  maintenance  of  an  existing  consti- 
tution, which  might  imply  help  against  revolted  subjects ; to 
national  independence,  as  when  in  the  peace  of  1856  at  Paris, 
the  signatories  to  the  treaty  pledged  themselves  to  sustain  the 
national  existence  and  integrity  of  Turkey,  — to  any  or  to  all 
of  these.  Guaranties  often  extend  to  all  the  provisions  of  a 
treaty ; and  thus  approach  to  the  class  of  defensive  alliances.^ 

1 Comp.  Yattel,  ii.,  16,  § 235  seq.  •,  Kliiber,  §§  157-159;  Heffter,  § 97; 
Wheaton’s  Elements,  iii.,  2,  § 12. 

2 111  the  treaty  of  alliance  with  France,  of  February  6,  1778  (Article  XI.),  the 
United  States  guaranteed  to  his  most  Christian  Majesty  the  then  existing  posses- 
sions of  the  Crown  of  France  in  America,  as  well  as  those  which  it  might  acquire 
by  the  future  treaty  of  peace.  When  in  1793,  France  went  to  war  with  Great 


§ 109. 


AND  ESPECIALLY  OF  TREATIES. 


175 


Guaranties  may  be  given  to  each  other  by  all  the  parties  to 
a treaty,  where  there  are  more  than  two,  or  by  certain  parties 
to  certain  others,  or  by  a third  power  to  secure  one  of  the 
principals  in  the  transactions.  At  the  peace  of  Aix-la-Cha- 
pelle,  in  1748,  the  eight  contracting  powers  gave  mutual  guar- 
anties. At  the  peace  of  Westphalia,  and  at  that  of  Paris,  in 
1763,  all  the  poAvers  concerned  did  the  same.  Sometimes  a 
treaty  renews  or  confirms  previous  ones,  and  the  question  may 
arise  wb ether  a general  guaranty  to  such  a treaty  is  also  a 
guaranty  to  all  past  treaties  Avhich  it  includes.  Thus,  the 
treaty  of  Teschen  ^ (Append,  ii.,  1779),  Avhich  was  guaran- 
teed by  Russia,  reneAved  the  treaties  of  Westphalia.  Did  then 
Russia  become  a guarantee  to  that  peace  ? Certainly  not  in 
the  same  sense  in  Avliich  France  and  SAveden  became  such, 
when  it  was  made  (Append,  ii.,  1648),  and,  at  most,  only  so 
far  as  the  relations  betAveen  those  powers  Avere  concerned  Avho 
were  parties  to  the  principal  treaty. 

The  political  importance  of  general  guaranties  is  none  other 
than  that  of  alliances  framed  in  vieAv  of  existing  affairs. 
They  are  a mode  of  providing  beforehand  against  infractions 
of  rights  by  securing  the  pledge  of  a third  party,  and  a con- 
venient Avay  of  intervening  in  the  affairs  of  other  states,  and 
of  keeping  up  the  present  order  of  thing.s.  Whether  they 
are  justifiable  in  such  cases  depends  not  on  the  form  Avhich 
they  take,  but  on  the  propriety  of  intervention.  (Comp.  § 43, 
note.) 

A guaranty  requires  the  party  making  it,  to  give  aid  when 
called  upon,  and  so  much  aid  as  he  had  stipulated,  and  in  a 
case  to  AATich,  in  his  judgment,  the  guaranty  relates.  If  the 
party,  on  Avhose  account  he  became  a security,  declines  his 


Britain,  the  question  was  discussed  in  our  cabinet  whether  the  war  was  on  the  part 
of  France  a defensive  one,  and  it  was  decided  that  it  was  not,  and  that  a casus  foede- 
ris did  not  exist.  (T.  S.)  But  the  guaranty  in  that  case  did  not  contemplate  only 
what  the  parties  engaged  to  do  in  a defensive  war.  In  1798,  Congress  renounced 
this  treaty  and  that  of  amity  and  commerce  of  the  same  year  with  others,  con- 
cluded before  that  date,  because  France  had  violated  one  or  more  articles  of  the 
original  treaties. 

^ Comp.  De  Martens,  § 338. 


176 


OF  THE  RIGHT  OF  CONTRACT 


§ 109. 


assistance,  he  has  nothing  to  do  with  the  case  further,  unless 
indeed,  grounds  of  public  interest,  apart  from  his  obligation, 
make  his  intervention  of  importance.  If  the  parties  to  a 
treaty  alter  it  or  add  to  it,  he  of  course  is  not  bound  by  his 
guaranty  in  regard  to  these  new  portions  of  the  treaty  ; if 
the  alterations  are  essential,  it  may  be  doubted  whether  his 
guaranty,  made,  perhaps,  in  view  of  another  state  of  things, 
has  not  ceased  to  be  obligatory.  If,  by  the  assistance  prom- 
ised, he  cannot  make  good  the  injury,  he  is  bound  to  noth- 
ing more,  much  less  to  compensation.  If  he  guarantees  a 
debt,  and  the  payment  is  refused,  he  is  not  bound  to  make  it 
good;  for  in  this,  according  to  Vatteh^  lies  the  difference  be- 
tween a surety  and  a guarantee,  that  the  former  is  obliged  to 
perform  what  the  principal  party  has  failed  to  do,  while  the 
latter  is  only  bound  to  do  his  best  to  bring  the  other  to  a com- 
pliance with  his  engagement. 

Treaties  of  guaranty,  when  they  pledge  a stronger  power 
to  maintain  the  independence  and  integrity  of  a 
guaranties  Weaker,  clo  not  differ  greatly  from  those  treaties  of 
protection  which  were  not  unknown  to  the  Middle 
Ages.  Of  such  a description  was  the  treaty  between  John  of 
EnMand  and  the  kiim  of  the  Isle  of  Man  in  1205,  which  Mr. 
Ward  notices  in  his  history  (ii.,  159),  and  rvhich  soon  after- 
ward (in  1212)  was  changed  into  a ti'eaty,  whereby  the  king 
of  England  became  the  suzerain  of  the  other.  Guar’anties  in 

o 

their  modern  form  do  not  seem  to  have  been  in  use  much  be- 
fore the  date  of  the  treaties  of  Westphalia.  Before  this 
time,  persons  called  conservators  were  sometimes  appointed  to 
watch  over  the  execution  of  treaties,  who  might  be  ministers 
or  governors  of  provinces,  Avith  porver  to  adjust  difficulties 
between  the  parties ; and  even  private  persons  added  their 
seals  to  that  of  their  sovereign,  and  rvere  bound  to  declare 
against  him,  if  he  broke  his  word.  At  the  treaty  of  Senlis, 
in  1493,  between  Charles  VIII.  of  France  and  the  Emperor 
Maximilian,  not  only  individnal  subjects  but  a number  of 
towns  attached  their  seals  on  behalf  of  their  respective  sove- 
1 Vattel,  ii.,  16,  § 240.  Comp.  Wheaton,  u.  s. 


§ no. 


AND  ESPECIALLY  OF  TEEATIES. 


177 


reigns.  The  Sieur  de  Bevres,  one  of  the  sealers,  declares, 
under  his  name,  that,  if  the  emperor  and  his  son.  Archduke 
Philip  the  Fair,  should  not  observe  their  agreement,  he  Avould 
be  bound  to  abandon  them,  and  give  favor  and  assistance  to 
the  king  of  France.  The  treaty  of  Blois  in  1505  first  men- 
tions foreign  princes  as  its  conservators.  They  add  their  con- 
firmation also  to  a peace  made  at  Cambray  seven  years  later. 
From  this  to  modern  guaranties  the  step  was  an  easy  one.^ 


§110. 

Various  other  ways  of  securing  the  parties  to  a treaty 
against  each  other’s  want  of  good  faith  have  been  other  modes 
taken,  some  of  which  are  obsolete,  while  others  are  “^'the^fluth 
still  in  use.  One  Avay  was  to  add  to  the  solemnity  of 
the  oath  which  confirmed  the  treaty,  by  taking  it  over  the 
bones  of  saints,  the  gospels,  the  wood  of  the  true  cross,  the  liost, 
and  the  like.  Another  kind  of  religious  sanction  is  found  in 
the  treaty  of  Cambray  (the  “ paix  des  dames,”  Append,  ii.) 
of  AiTgust  5,  1529,  in  which  the  parties  submitted  themselves 
to  the  jurisdiction  and  censures  of  the  church,  even  to  the 
point  of  suffering  the  secular  arm  to  be  called  in  to  support 
the  ecclesiastical ; and  appointed  procurators  to  appear  at 
Borne  on  their  behalf,  and  undergo  the  condemnation  and 
fulmination  of  such  censui’es,^  etc. 

Another  mode  of  securing  the  faith  of  treaties,  formerly 
much  in  use,  but  now  almost  obsolete,  was  tliat  of 
giving  hostages,  one  of  tlie  last  examples  of  which 
occun’ed  after  the  peace  of  Aix-la-Chapelle,  in  1748,  when 
two  British  peers  (Lords  Sussex  and  Cathcart)  remained  on 
parole  at  Paris  until  Cape  Breton  should  be  restored  to  France. 


1 See  ]\ral)l_Y,  i.,  Part  ii.,  129-131,  Amsterdam  edit,  of  1777,  and  Flassan,  Hist, 
de  la  Diplom.  Frangaise,  i.,  244,  in  his  remarks  on  a treaty  between  Louis  XI. 
and  the  Emperor  in  1482. 

2 Comp.  Mably,  u.  s.  The  provision  is  found  in  Art.  XL VI.  of  the  treaty  (Du- 
mont, iv.,  2,  15),  and  is  a striking  proof  of  the  small  trust  which  the  parties  put 
in  one  another.  They  show  in  the  same  place  a dread  that  the  Pope  might  ab- 
solve one  or  the  other,  (as  he  had  already  done  in  the  case  of  Francis,)  from  his 
oath  and  faith,  and  endeavor  to  guard  against  it. 

12 


178 


OF  THE  RIGHT  OF  CONTRACT 


§ no. 


The  understanding  in  giving  hostages  was  that  their  freedom 
and  not  their  lives  secured  the  treaty  : hence,  Avhen  it  Avas 
violated,  they  might  be  detained  in  captivity,  but  not  put  to 
death.  Escape  on  their  part  Avould  be  gross  treachery.  On 
the  fulfillment  of  the  obligation  they  Avere  of  course  free. 
The  mode  of  treating  them  Avithin  the  laws  of  humanity,  as 
Avhether  they  should  be  confined,  according  to  early  practice, 
or  be  allowed  to  go  about  on  parole,  Avould  depend  on  the 
pleasure  of  the  party  secured  by  them.  It  has  been  asked, 
Avhether  a prince  serving  as  a hostage  could  be  detained,  if 
he  should  inherit  the  croAvn  during  his  captivity.  Without 
doubt  he  might  in  the  times  Avhen  hostages  Avere  commonly 
given,  because  even  sovereigns  Avere  then  so  detained.  And 
if  the  practice  prevailed  noAV,  it  might  be  doubted  Avhether 
the  principle  of  exterritoriality  Avould  not  have  in  such  a case 
to  be  sacrificed.^ 

Treaties  are  also  still  confirmed  by  pledges,  Avhich  gener- 
ally consist  in  territories  or  fortresses  put  into  the 

PIg  J‘^GS 

hands  of  the  other  party,  avIio  more  rarely  contents 
himself  Avith  simple  hypothecation  Avithout  transfer.^  The 
occupation  of  the  French  fortresses  bj^  the  allies,  according  to 
the  terms  of  the  second  treaty  of  Paris,  may  be  regarded  as 
coming  under  this  head,  since  it  secured  the  payment  of  the 
indemnities  (Append,  ii.,  1815),  although  it  was  equally  in- 
tended to  secure  the  Bourbon  dynasty. 

§ 111-  . 

Unless  some  other  time  is  agreed  upon,  treaties  are  binding 
at  the  time  when  they  are  signed  by  an  authorized 
tlS\cynTo  figent,  and  their  ratification  by  their  sovereign  is  re- 

be  binding?  troactive. 

If,  then,  an  ambassador,  in  conformity  with  a full  power  re- 
ceived from  his  soA^ereign,  has  negotiated  and  signed  a treaty, 
is  the  sovereign  justified  in  Avithholding  his  ratification  ? 
This  question  has  no  significance  in  regard  to  states,  by  Avhose 

^ Comp.  Vattel,  ii.,  chap.  16,  §§  245-261,  and  Ward’s  History,  i.,  172-175. 

* Comp.  Kliiber,  § 156. 


HI. 


AND  ESPECIALLY  OP  TREATIES. 


179 


form  of  government  the  engagements  made  by  the  executive 
■with  foreign  powers  need  some  further  sanction.  In  other 
cases,  that  is  wherever  the  treaty-making  jjower  of  the  sove- 
reign is  final,  the  older  Avriters  held  that  he  Avas  bound  by 
the  acts  of  his  agent,  if  tiie  latter  acted  Avithin  the  full  power 
AAdiich  he  had  received,  even  though  he  had.  gone  contrary  to 
secret  instructions.  But  Bynkershoek  defended  another  opin- 
ion Avhicli  is  noAV  the  received  one  among  the  text-writers,  and 
Avhich  Wheaton  has  advocated  at  large  with  great  ability.^ 
If  the  minister  has  conformed  at  once  to  his  ostensible  poAV- 
ers  and  to  his  secret  instructions,  there  is  no  doubt  that  in 
ordinary  cases  it  Avould  be  bad  faith  in  the  sovereign  not  to 
add  his  ratification.  But  if  the  minister  disobeys  or  tran- 
scends his  instructions,  the  sovereign  may  refuse  his  sanction 
to  the  treaty  Avithout  bad  faith  or  ground  of  complaint  on  the 
other  side.  But  even  this  violation  of  secret  instructions 
Avould  be  no  valid  excuse  for  the  sovereign’s  refusing  to  accept 
the  treaty,  if  he  should  hav^e  given  public  credentials  of  a 
minute  and  specific  character  to  his  agent ; for  the  evident 
intention  in  so  doing,  Avonld  be  to  conA^ey  an  impression  to 
the  other  party,  that  he  is  making  a sincere  declaration  of 
the  terms  on  Avhich  he  is  Avilling  to  treat. 

And  even  Avhen  the  negotiator  has  folloAved  his  private 
instructions,  there  are  cases,  according  to  Dr.  Wheaton,  Avhere 
the  sovereign  may  refuse  his  ratification.  He  may  do  so  AAdien 
the  motive  for  making  the  treaty  Avas  an  error  in  regard  to  a 
matter  of  fact,  or  Avhen  the  treaty  would  involve  an  injury  to 
a third  party,  or  Avhen  there  is  a physical  impossibility  of  ful- 
filling it,  or  Avhen  such  a change  of  circumstances  takes  place 
as  Avould  make  the  treaty  v’oid  after  ratification. 

All  question  Avould  be  remoA^ed,  if  in  the  full  poAver  of  the 
negotiator  or  in  a clause  of  the  treaty  itself,  it  Avere  declared 
that  the  sovereign  reseiwed  to  himself  the  poAver  of  giving 
validity  to  the  treaty  by  ratification.  This,  if  Ave  are  not 
deceived,  is  noAV  very  generally  the  case. 

1 Wheaton’s  Elements,  Book  iii.,  2,  § 5 ; Bynkershoek,  Quasi.  J.  P.,  ii.,  7 ; De 
Martens,  § 48. 


180 


OF  THE  RIGHT  OF  CONTRACT 


§ 113. 


§ 112. 

Treaties,  like  other  contracts,  are  violated,  when  one  party 
Violation  o£  nGglects  01’  refuscs  to  do  that  Avhich  moved  the  other 
treaties.  party  to  engage  in  the  transaction.  It  is  not  every 
petty  failure  or  delay  to  fulfill  a treaty,  Avhicli  can  autliorize 
the  other  party  to  regard  it  as  broken, — above  all,  if  the 
intention  to  observe  it  remains.  When  a treaty  is  violated  by 
one  party,  in  one  or  more  of  its  articles,  the  other  can  regard 
it  as  broken,  and  demand  redi’ess,  or  can  still  require  its  ob- 
servance.^ 

§ 113. 

The  laws  of  interpretation  in  the  case  of  treaties  are  sub- 
stantially the  same  as  in  the  case  of  the  other  con- 

Interpreta-  ^ i 

tion  of  trea-  ti’acts.  Soiiie  writei’s,  as  Grotius  and  v attel,  ffo  at 

ties.  ’ ’ ° 


The  folloAving  are  among 


large  into  this  subject.^ 
the  most  important  of  these  laws : 

1.  The  ordinary  usus  loquendi  obtains,  unless  it  involves  an 
absurdit}'-.  When  Avords  of  art  are  used,  the  special  meaning 
Avhich  they  have  in  the  given  art  is  to  determine  their  sense. 

2.  If  tAvo  meanings  are  admissible,  that  is  to  be  preferred 
Avhich  is  least  for  the  advantage  of  the  party  for  Avhose  benefit 
a clause  is  inserted.  For  in  securing  a benefit  he  ought  to 
express  himself  clearly.  The  sense  Avliich  the  accej)ter  of 
conditions  attaches  to  them  ought  rather  to  be  folloAved  than 
that  of  the  offerer. 

3.  An  interpretation  is  to  be  rejected,  Avhich  involves  an 
absurdity,  or  rendei’s  the  transaction  of  no  effect,  or  makes  its 
parts  inconsistent. 

4.  Obscure  expressions  are  explained  by  others  more  clear 

^ Thus  ns  the  Constitution  of  tlie  Unitetl  States  requires  the  consent  of  two 
thirds  of  tlie  Senate  before  a treaty  can  have  full  validity,  it  is  no  violation  of 
obligation  if  the  Senate  makes  an  alteration  in  a treaty  laid  before  them  for  their 
concurrence;  as  when  the  second  article  of  tlie  convention  of  1800  with  France 
was  expunged  and  another  proposed  in  its  ]ilace.  To  this  tlie  French  consul  or 
government  agreed.  No  treaty  can  be  absolutely  ratified  until  tbe  Senate  takes 
action  upon  it.  (Comp,  the  second  note  on  § 109.) 

2 Grotius,  ii.,  16;  Vattel,  ii.,  chap.  17.  Comp.  Wildman,  vol.  i.,  176-185. 


§ 113. 


AND  ESPECIALLY  OF  TKEATIES. 


181 


in  the  same  instrument.  To  discover  the  meaning,  the  con- 
nection and  the  reasons  for  an  act  must  he  considered. 

5.  Odious  clauses,  such  as  involve  cruelty  or  hard  con- 
ditions for  one  party,  are  to  be  understood  strictly,  so  that 
their  operation  shall  be  brought  witliin  the  narrowest  limits ; 
while  clauses  which  favor  justice,  equity,  and  humanity  are  to 
be  interpreted  broadly. 

Sometimes  clauses  in  the  same  treaty,  or  treaties  between 
the  same  parties  are  repugnant.  Some  of  the  rules  Repugnant 


clauses  and 
coDfiicting 


here  applicable  are  — 


1.  That  earlier  clauses  are  to  be  explained  by  later 

ones,  which  were  added,  it  is  reasonable  to  suppose,  for  the 
sake  of  explanation,  or  which  at  least  express  the  last  mind 
of  the  parties.  So  also  later  treaties  explain  or  abrogate  older 
ones. 

2.  Special  clauses  have  the  preference  over  general,  and  for 
the  most  part  prohibitory  over  permissive. 

In  treaties  made  luith  different  parties  the  inquiry  in  cases 
of  conflict  touches  the  moral  obligation  as  well  as  the  meaning. 
Here  the  earlier  treaty  must  evidently  stand  against  the  lat- 
ter, and  if  possible,  must  determine  its  import  where  the  two 
seem  to  conflict. 

In  general,  conditional  clauses  are  inoperative,  as  long  as 
the  condition  is  unfulfilled ; and  are  made  null  when  it  be- 
comes impossible.  Where  things  promised  in  a treaty  are 
incompatible,  the  promisee  may  choose  which  he  will  demand 
the  performance  of,  but  here  and  elseAvhere  an  act  of  expe- 
diency ought  to  give  way  to  an  act  of  justice.^ 

1 For  some  remarks  on  the  language  used  in  making  treaties,  which  logically 
belong  here,  see  § 158. 


PART  11. 

INTERNATIONAL  LAW  AND  USAGE  IN  A STATE  OF  WAR 


CHAPTER  I. 

ON  THE  EIGHTS  OE  SELF-DEFENSE  AND  REDRESS  OF  INJURIES 
PERTAINING  TO  NATIONS,  OR  OF  WAR,  CAPTURE, 

AND  TREATIES  OF  PEACE. 

Section  I.  — Of  War. 

§ 114. 

Peace  is  the  normal  state  of  mankind,  just  as  society  and 
Of  war  in  Orderly  government  are  natural ; and  war,  like  bar- 
generai.  barism,  luust  be  regarded  as  a departure  from  the 
natural  order  of  things.  But  as  the  present  state  of  nature 
in  the  individual,  being  abnormal  and  unnatural  in  the  higher 
sense,  leads  to  injuries,  trespasses  on  rights  and  attempts  at 
redress,  so  is  it  in  the  society  of  nations.  International  law 
assumes  that  there  must  be  “ wars  and  fightings  ” among 
nations,  and  endeavors  to  lay  down  rules  by  which  they  shall 
be  brought  within  the  limits  of  justice  and  humanity.  In 
fact,  Avars  and  the  relations  in  Avhich  nations  stand  to  one 
another,  as  belligerent  or  neutral,  form  the  principal  branch 
of  international  law,  — so  much  so  that  in  a state  of  assured 
and  permanent  peace  there  Avould  be  little  need  of  this  science, 
the  tendency  of  Avhich,  therefore,  justly  estimated,  is  to  bring 
about  a time  Avhen  it  shall  itself  lose  the  greater  part  of  its 
impoi'tance. 

In  the  sections  of  this  chapter  we  shall  need  to  consider  Avar 
as  to  its  notion  and  moral  ground,  the  mode  of  commencing  it. 


§ 115. 


RIGHTS  OF  SELF-DEFENSE,  ETC. 


183 


and  those  states  of  international  intercourse  which  lie  between 
war  and  peace ; as  to  the  relation  into  which  it  brings  the  bel- 
ligerent parties,  its  usages  and  laws  on  land  and  sea,  especially 
those  which  affect  property  taken  on  the  latter,  and  lastly  its 
suspension  and  final  termination.  Then  in  another  chapter, 
the  rights  and  obligations  of  neutrals  will  be  treated  of,  as 
affected  by  the  relations  of  the  belligerents, 

§ 315. 

War  may  be  defined  to  be  an  interruption  of  a state  of 
peace  for  the  purpose  of  attempting  to  procure  good  ^ 

or  prevent  evil  by  force ; and  a just  war  is  an  attempt  just^^war, 
to  obtain  justice  or  prevent  injustice  by  force,  or,  in 
other  words  to  bring  back  an  injuring  party  to  a right  state  of 
mind  and  conduct  by  the  infliction  of  deserved  evil.  A jus- 
tifiable war,  again,  is  only  one  that  is  waged  in  the  last  resort, 
when  peaceful  means  have  failed  to  procure  redress,  or  when 
self-defense  calls  for  it.  We  have  no  right  to  redress  our 
wrongs  in  a way  of  violence,  involving  harm  to  others,  when 
peaceful  methods  of  obtaining  justice  would  be  successful. 

By  justice,  however,  we  intend  not  justice  objective,  but  as 
it  appears  to  a party  concerned,  or,  at  least,  as  it  is  is  to 
claimed  to  exist.  From  the  independence  of  nations  it 
results  that  each  has  a right  to  hold  and  make  good  its  own  view 
of  right  in  its  own  affairs.  When  a quarrel  arises  between 
two  states,  other’s  are  not  to  interfere  (comp,  § 20  a)  because 
their  views  of  the  right  in  the  case  differ  from  those  of  a party 
concerned ; or  at  least  they  are  not  to  do  this  unless  the  injus- 
tice of  the  war  is  flagrant  and  its  principle  dangerous  to  the 
general  welfare  of  nations.  If  a nation,  however,  should  un- 
dertake a war  with  iro  pretext  of  right,  other  states  may  not 
only  remonstrate,  but  use  force  to  put  down  such  wickedness. 

It  may  be  said  that  as  individuals  ought  not  to  nations 
judge  in  their  own  cause,  so  nations  ought  to  submit  submttthcir 
their  differences  to  third  parties  and  abide  by  the  toa'rM'tra- 
issue.  It  would  doubtless  be  desirable,  if  resort  were 
more  fi-equently  had  to  arbitration  before  the  last  remedy  of 


184 


RIGHT  OF  SELF-DEFENSE 


§ 115. 


wrongs  were  used,  and  probably,  as  the  world  grows  better, 
this  practice  will  more  and  more  prevail.  (Comp.  §§  225, 
227.)  But  in  the  past  a multitude  of  aggressions  have  oc- 
curred which  could  not  be  so  prevented,  which  needed  to  be 
repelled  by  the  speediest  means  ; nor  have  the  intelligence  and 
probity  of  men  been  such  that  good  arbitrators  could  always 
be  found.  This  question,  however,  relates  to  duty,  and  does 
not  affect  the  justice  of  a war  which  a nation  should  undertake 
on  grounds  which  approved  themselves  to  its  own  unaided 
judgment.  (Comp.  § 19.) 

A state  bound  by  treaty  to  assist  another  in  the  event  of 
war,  must  of  course  iudo:e  whether  the  casus  foederis 

Ought  an  . , • , i i ^ 

ally  to  exists,  and  is  also  bound  to  pass  judgment  on  the 
nature  of  the  Avar,  since  no  treaty  can  sanction  in- 
justice. 

§ 116- 

The  rightfulness  of  war,  that  is  of  some  wars,  will  be  clear 
when  Ave  consider  that  to  states,  by  the  divine  con- 
nes.'!  of  wai-  stitutioii  of  societv,  beloiiff  the  oblisrations  of  protect- 

in  general.  , ^ o o x ^ 

ing  themselves  and  their  people,  as  Avell  as  the  right 
of  redress,  and  even,  perhaps,  that  of  punishment.  (§  20  a.') 
To  resist  injury,  to  obtain  justice,  to  give  Avholesome  lessons 
to  Avrong-doers  for  the  future,  are  prerogatives  deputed  by  the 
Divine  King  of  the  Avorld  to  organized  society,  Avhich,  Avhen 
exercised  aright,  cultivate  the  moral  faculty,  and  raise  the  tone 
of  judging  throughout  mankind.  War  is  a dreadful  thing 
Avhen  evil  suffered  or  inflicted  is  considered  ; and  yet  Avar  has 
sometimes  been  the  restorer  of  national  virtue,  Avhich  had 
nearly  perished  under  the  influence  of  selfish,  luxurious  peace. 

A Avar  may  be  Avaged  to  defend  any  right  Avhich  a state  is 
bound  to  protect,  or  to  redress  Avrong,  or  to  prevent 
may  war  be  apprehended  mnirv.  And  (1)  a state  may  go  to  Avar 

undertaken  i .i,- 

to  defend  its  sovereignty  and  independence,  that  is, 
its  political  life,  and  its  territory.  Tliis  reason  for  Avar  is  an- 
alogous to  the  individuars  right  of  self-preservation,  and  of 
defending  his  house  Avhen  attacked. 

(2.)  The  state  being  bound  to  protect  the  individual  in- 


§ 116. 


AND  REDRESS  OF  INJURIES,  ETC. 


185 


habitant  in  all  his  rights,  is  his  only  defender  against  foreign 
violence,  and  may  redress  his  wrongs  even  by  war.  But  here 
it  is  reasonable  to  consider  the  extent  of  the  injury,  and  the 
greatness  of  the  evil  which  the  remedy  may  involve.  A state 
may  forbear  to  redress  its  own  public  wrongs,  much  more  the 
smaller  ones  of  individuals. 

(3.)  A state  may  engage  in  war  to  obtain  satisfaction  for 
violations  of  its  honor,  as  for  insults  to  its  flag  or  its  ambas- 
sadors, or  its  good  name.  We  have  seen  (§  18),  that  a state 
has  a right  of  reputation,  that  this  right  is  exti’emely  im- 
portant, and  that  infractions  of  it  cannot  fail  to  arouse  a deep 
sense  of  wrong  in  a high-minded  people.  Redress,  therefore, 
is  here  as  just  and  natural  as  suits  for  libel  or  slander  between 
individuals.  It  is  plain,  however,  that  every  small  want  of 
comity  or  petty  insult  does  not  warrant  hostile  measures, 
though  it  may  call  for  remonstrance. 

(4.)  Violations  of  those  rights  which  nations  concede  to  one 
another  by  treaty  may  call  for  the  redress  of  war.  A contract 
is  broken,  — a contract  to  pay  money  for  instance  — and  there 
is  no  court  before  which  tiie  party  doing  the  injury  can  be 
summoned. 

(5.)  The  prevention  of  intended  injury  is  a ground  of  war. 
This  indeed  is  a case  of  self-defense,  only  the  injury  must  be 
not  remote  nor  constructive  but  fairly  inferable  from  the  prep- 
arations and  intentions  of  the  other  party.  The  injury,  again, 
which  is  to  be  prevented  may  not  be  aimed  directly  against  a 
particular  state,  but  may  affect  the  equilibrium  of  a system  of 
states.  Thus  the  ambition  of  a leading  state,  it  is  now  held, 
may,  by  disturbing  the  balance  of  power  in  Europe,  provoke 
the  interference  of  others  upon  the  same  continent.  (Comp. 
§§  43,  44.) 

(6.)  In  some  rare  cases  a great  and  flagrant  wrong  com- 
mitted by  another  nation,  against  religion  for  instance  or  lib- 
erty, may  justify  hostile  interference  on  the  part  of  those  who 
are  not  immediately  affected.  (§  51.)  And  this,  not  only  be- 
cause the  wrong,  if  allowed,  may  threaten  all  states,  but  also 
because  the  better  feelings  of  nations  impel  them  to  help  the 
injured. 


186 


EIGHTS  OF  SELF-DEFENSE. 


§ in. 


§ in. 

Wars  may  be  waged  against  foreign  states  in  the  same  polit- 
Kinds  of  ical  system,  or  nations  out  of  the  pale  of  Christian 
siv^and'^de-  ciAulization,  against  savages,  against  pirates,  or  by 
fensive  war.  .j-pg  pai'ts  of  a State  agaiust  each  other.  Of  the  most 
of  these,  after  the  first,  international  law  has  usually  but  a 
word  to  say.  Wars,  again,  have  been  divided  into  defensive 
and  offensive.  This  distinction  is  of  no  very  great  importance, 
since,  as  Ave  have  seen,  the  tAvo  may  differ  less  in  essence  than 
in  form,  and,  as  it  respects  form,  the  one  runs  into  the  other. 
A wronged  nation,  or  one  fearing  sudden  Avrong,  may  be  the 
first  to  attack,  and  that  is  perhaps  its  best  defense.  MoreoA’er, 
offensive  AA'ars,  hoAvever  apt  to  be  unjust,  liaA^e  usually  some 
pretext  of  justice  to  urge  in  their  favor,  Avhicli  nations,  except 
in  extreme  cases,  must  respect,  unless  every  nation  is  to  be- 
come a judge  and  a party. 


§ 118. 

Nations  have  sometimes  resorted  to  measures  for  obtaining 
wea.suresfor  I'edress,  Avliicli  liavc  a hostile  character  and  yet  fall 
in^’shL^t'^of  short  of  actual  Avar.  Embargo,  retorsion,  and  reprisal 
are  of  this  description. 

1.  An  embargo  (from  the  Spanish  and  Portuguese  embar- 
gar,  to  hinder  or  detain,  the  root  of  Avhich  is  the  same 
Embargo.  barricade'),  is,  in  its  special  sense,  a 

detention  of  A^essels  in  a port,  Avhether  they  be  national  or  for- 
eign, whether  for  the  purpose  of  employing  tliem  and  their 
crews  in  a naval  expedition,  as  Avas  formerly  practiced,^  or  for 

1 Tlie  practice  referred  to  here  of  detaining  foreign  vessels  for  tlie  public  service 
has  been  exalted  into  a right,  which  the  French  call  le  droit  d’Angaric.  The 
origin  of  this  word  is  to  be  sought  in  the  old  Persian(see  Herodotus,  8,  98,  and 
Bdhr’s  note),  which  applied  &yyapos,  ayyaprt'iov  (Herodot.),  to  the  S3'’stcm  of  public 
posts,  or  couriers  (comp,  the  book  of  Esther,  viii.,  14).  It  naturally  came  to  de- 
note compulsor}^  service  in  carrying  messages;  a sense  which  belongs  to  the  root 
in  the  New  Testament.  'Flien  iji  lower  and  in  jMeditcval  Latin  it  denoted  — in 
the  forms  angaria, angarue,  a post-station  — the  furnishing  of  cattle  or  wagons,  as 
for  an  official  or  the  senior  — burdens  in  general  imposed  on  land  or  persons  — 
stated  times  when  burdens  or  dues  were  rendered  — any  compulsion  or  vexation 


§ IIS- 


AND  REDRESS  OF  INJURIES,  ETC. 


187 


political  purposes,  or  by  way  of  reprisals.  A civil  emlmrgo 
may  be  laid  for  the  purpose  of  national  welfare  or  safety,  as 
for  the  protection  of  commercial  vessels  against  the  rules  of 
belligerent  powers  which  would  expose  them  to  capture.  Such 
was  the  measure  adopted  by  the  United  States  in  December, 
1807,  which  detained  in  port  all  vessels  except  those  Avhich 
had  a public  commission,  and  those  that  were  already  laden 
or  should  sail  in  ballast.  The  right  to  adopt  such  a measure 
of  temporary  non-intercourse  is  undoubted.  Great  Britain, 
although  injured  by  the  act,  acknowledged  that  it  afforded  to 
foreign  nations  no  ground  of  complaint.  And  yet,  in  the  half 
century  since  that  eA’ent,  uninterrupted  intercourse  has  come 
to  be  regarded  almost  as  an  absolute  right,  and  the  injuries  in- 
flicted in  such  a way  on  friendly  states  would  cause  them  to 
protest  Avith  energy  or  to  retaliate. 

A hostile  embargo  is  a kind  of  reprisals  by  one  nation  upon 
vessels  Avithin  its  ports  belonging  to  another  nation  nostneem- 
Avith  Avhich  a difference  exists,  for  the  purpose  of 
forcing  it  to  do  justice.  If  this  measure  should  be  folloAved  by 
war,  the  vessels  are  regarded  as  captured,  if  by  peace,  they  are 
restored.  “•This  species  of  reprisal,  says  Kent  (i.,  Gl),  “is 
laid  doAAur  in  the  books  as  a laAvful  measure  according  to  the 

o 

usage  of  nations,  but  it  is  often  reprobated,  and  cannot  aa'cII 
be  distinguished  from  the  practice  of  seizing  property  found 
in  the  territory  upon  the  declaration  of  Avar.”  Although  such 
a measure  might  bring  an  acU'ersary  to  terms,  and  preA’ent  Avar, 
yet  its  resemblance  to  robbery,  occurring,  as  it  does,  in  the 
midst  of  peace,  and  its  contrariety  to  the  rules  according  to 

As  a so-called  right,  this  deduction  of  meanings  sliows  tliat  it  flowed  out  of  feudal 
claims  and  usages,  which,  like  the  right  of  purveyance,  are  how  obsolete.  If  ever 
justifiable,  it  can  he  defended  oidy  on  the  ground  of  extreme  neccssitv,  though 
having  a certain  sanction  from  usage.  “ If  the  reason  of  the  thing,”  savs  Pliilli- 
more  (iii.,  ]).  51,  ed.  2),  “ and  the  jiaramount  principle  of  national  independence 
be  duly  considered,  it  can  only  be  excused  and  perhaps  scarcely  justified  bv  that 
clear  aud  overwhelming  necessity,  which  would  com]iel  an  individual  to  seize  his 
neighbor’s  horse  or  weapon  to  defend  his  own  life.”  Of  cour.se,  full  compensation 
was  due  to  the  foreigner,  when  his  “horses  of  the  sea”  were  so  treated.  (Comp. 
Hautefeuille,  iv.,  439  et  seq.)  The  Prussians  appealed  to  this  right  in  defense  of 
their  sinking  six  British  vessels  in  the  Seine  in  the  late  French  war  (1871.) 


188 


EIGHTS  OF  SELF-DEFENSE. 


§ 118. 


which  the  private  property  even  of  enemies  is  treated,  ought 
to  make  it  disgraceful,  and  drrie  it  into  disuse. 

2.  Retorsion  (from  retorquere,  French,  retordre^  retort),  or 

retaliation,  is  to  apply  the  lex  talionis  to  another 

Retorision.  . . ^ . , . .... 

nation,  — treating  it  or  its  subjects  in  similar  circum- 
stances according  to  the  rule  which  it  has  set.  Thus,  if  a 
nation  has  failed  in  comity  or  politeness,  if  it  has  embarrassed 
intercourse  by  new  taxes  on  commerce  or  the  like,  the  same  or 
an  analogous  course  may  be  taken  by  the  aggrieved  power  to 
bring  it  back  to  propriety  and  duty.  The  sphere  of  retorsion 
ought  to  be  confined  within  the  imperfect  rights  or  moral 
claims  of  an  opposite  party.  Rights  ought  not  to  be  violated 
because  another  nation  has  violated  them. 

3,  Reprisals  (from  repreyidere^  Latin,  repressalice,  in  medi- 

leval  Latin,  reprisailles,  French),  consist  properly  in 

Reprisals.  . ’ • • • 

recovering  wiiat  is  onr  own  by  force,  then  in  seizing 
an  equivalent,  or,  negatively,  in  detaining  that  which  belongs 
to  our  adversary.  Reprisals,  says  Vattel,  “are  used  between 
nation  and  nation  to  do  justice  to  themselves,  when  they  can- 
not otherwise  obtain  it.  If  a nation  has  taken  possession  of 
what  belongs  to  another  ; if  it  refuses  to  pny  a debt,  to  repair 
an  injury,  to  make  a just  satisfaction  ; the  other  may  seize 
wdiat  belongs  to  it,  and  apply  it  to  its  own  advantage,  till  it  has 
obtained  ivliat  is  due  for  interest  and  damage,  or  keep  it  as  a 
jiledge  until  full  satisfaction  has  been  made.  In  the  last  case 
it  is  rather  a stoppage  or  a seizure  than  reprisals  ; but  they 
are  frequently  confounded  in  common  language.”  (Lib.  ii.,  § 
342.) 

Reprisals  differ  from  retorsion  in  this,  that  the  essence  of 
the  former  consists  in  seizing  the  property  of  another  nation 
by  way  of  security,  until  it  shall  have  listened  to  the  just  re- 
clamations of  the  offended  party,  wdiile  retorsion  includes  all 
kinds  of  measures  which  do  an  injury  to  another,  similar  and 
equivalent  to  that  which  we  have  experienced  from  him.^ 
Embargo,  therefore,  is  a species  of  reprisals. 

Reprisals  may  be  undertaken  on  account  of  any  injury,  but 
1 Piuheiro-Ferreira  in  Dr  Martens,  vol.  ii.,  § 255. 


§ 118. 


AND  EEDRESS  OF  IN, JURIES,  ETC. 


189 


are  chiefly  confined  to  cases  of  refusal  or  even  obstinate  delay 
of  justice.  Grotius  adds  that  they  are  authorized,  “si  in  re 
miniine  dnbia  plane  contra  jus  judicatum  sit.”  (iii.,  2,  § 5,  1.) 
But  this  is  an  unsafe  opinion,  and  to  be  acted  upon  only  in  an 
extreme  case,  for  the  sentence  of  a regular  tribunal  will  al- 
ways be  supported  by  some  plausible,  if  not  valid  reason  : 
there  should  be  the  fullest  proof  of  an  intention  to  deny  or 
to  oveitui'n  justice.^ 

Where  the  property  of  a state  is  seized  by  Avay  of  reprisals, 
the  proceeding  needs  no  defense ; on  the  other  hand,  to  take 
the  goods  of  private  persons,  as  security  for  the  reparation  of 
public  wrongs,  is  indefensible,  except  on  the  ground  that  a 
state  and  its  svibjects  are  so  far  one  as  to  give  it  a claim  on 
their  property  for  public  purposes,  and  that  the  injured  state 
takes  the  place  of  the  injurer,  and  exercises  its  power  by  the 
only  means  within  its  reach.  As,  therefore,  when  a man’s 
land  is  taken  for  a public  road,  he  has  a claim  for  compensa- 
tion, so,  when  a man  loses  his  property  by  the  violent  pro- 
cess of  a foreign  state  against  his  own  country,  not  he,  but  the 
Avhole  society  ought  to  make  his  loss  good.  Still,  reprisals 
are  inhuman,  and,  like  seizure  of  private  effects  in  land-war, 
will,  it  is  to  be  hoped,  ere  long,  entirely  cease. 


1 Bluntschli  (Mod.  Tolcherr.,  § 500)  mentions  the  following  ways  of  reprisals  as 
“ internationally  permissible  ” : — 

(1.)  Seizure  and  sale  of  the  offending  state’s  property  found  within  the  territory 
of  the  injured  state. 

(2.)  Seizure  of  private  property  of  persons  belonging  to  the  offending  state 
provided  the  latter  has  unjustly  seized  property  of  ] ersons  belonging  to  the  in- 
jured state.  But  this,  he  adds,  is  a most  questionable  means  of  self-help,  as  it 
touches  neither  the  guilty  nor  the  responsible  jiartv. 

(3.)  Stopping  means  of  communication,  as  by  post,  railroad,  telegraph,  or 
ships. 

(4.)  Expelling  or  refusing  to  receive  persons  belonging  to  the  injured  state 
within  the  territory. 

(.5.)  Keeping  representatives  or  subjects  of  the  offending  state  as  hostages. 

(G.)  Imprisonment  of  officials  or  private  citizens  of  an  offending  state  in  requital 
for  the  same  conduct  on  its  part. 

(7.)  Refusing  to  fulfill  agreements,  or  to  be  bound  by  treaties. 

(8.)  Taking  privileges  or  protection  in  matters  of  private  right  from  persons 
belonging  to  the  offending  state. 


190 


RIGHTS  OF  SELF-DEFENSE 


§ ns. 


The  Romans  knew  nothing  of  repi’isals,^  bnt  Avith  gi’eat 
formality  defined  and  observed  the  limits  between 
Romau  ])eace  and  Avar.  The  Greeks,  hoAvever,  had  usages, 

US£l‘’'6S. 

similar  to  this,  draAAOi  from  their  simpler  semi-bar- 
barous times.  Tims,  before  Avar  Avas  declared,  arid  after  the 
denial  of  justice,  they  gave  license  to  their  citizens  to  take 
plunder  from  the  offending  state  on  land  and  sea.  There  AAms 
also  a custom  preA'ailing  betAveen  border  states,  AAdien  a hom- 
icide had  been  committed,  and  the  man-slayer  Avas  not  given 
up  to  the  i-elatives  of  the  deceased,  of  alloAving  them  to  seize 
and  keep  in  chains  three  countrymen  of  the  Avrong-doer,  until 
satisfaction  should  be  rendered. 

The  Greeks  here  present  to  us  tAvo  forms  of  reprisals,  the 
jiediEEvai  Avliere  the  state  gives  authority  lo  all,  or  in  a 

public  Avay  attempts  to  obtain  justice  by  force,  Avhich 
is  called  general,  and  the  other,  Avhere  power  is  given  to  the 
injured  party  to  right  himself  by  his  OAvn  means,  or  special  I’e- 
prisals.  The  latter  has  noAv  fallen  into  disuse,  and  Avould  be 
regarded  as  an  act  of  hostility,  but  Avas  Avith  the  other  a 
received  method  of  redress  in  the  Middle  Ages  ; nor  Avas  it 
strange  that  a private  person,  by  the  leave  of  his  superior, 
should  AA'age  a Avar  of  his  oavu,  Avhen  private  AAmrs  Avei'e  a part 
of  the  order  of  things.  Mr.  Ward  (i.,  176),  and  the  English 
historians,  mention  an  instance  of  reprisals  betAveen  the  Eng- 
lish and  French  in  the  13th  century,  Avhich  might  seem  to 
pertain  to  the  I)yaks  or  the  OjibAvays.  In  1292,  tAvo  sailors, 
a Norman  and  an  Englishman,  having  come  to  blows  at  Ba- 
3’onne,  the  latter  stabbed  the  former,  and  Avas  not  brought  be- 
fore the  courts  of  justice.  The  Normans  applied  to  Philip 
the  Fair  for  redress,  Avho  ansAvered  by  bidding  them  to  take 
their  oaaui  revenge.  They  put  to  sea,  seized  the  first  English 
ship  they  met,  and  hung  up  seA'eral  of  the  creAV  at  the  mast- 
head. The  English  retaliated  Avithout  applying  to  their  gov- 
ernment, and  things  arose  to  such  a pitch,  that  tAvo  hundred 

1 De  .Jure,  etc  , p.  3.A.  Schumann,  AiUiq.  .Juris  Publici,  ]i.  .366, 

and  liis  (j'riech.  Altertliiiiner,  ii.,  p.  6.  Comp.  Bynkershoek,  Quccst.  .1.  P.,  i.,  24. 
'I'h  ' (ivcek.s  said,  cCAa  SiSovai,  KaTayyJWeiy  Kara  tivos. 


§ 118. 


AND  REDRESS  OF  INJURIES,  ETC. 


191 


Norman  vessels  scoured  the  English  seas,  hanging  all  the  sail- 
ors they  caught,  -while  the  English,  in  greater  force,  destroyed 
a large  part  of  the  Norman  ships,  and  15,000  men.  It  -was 
now  that  the  governments  interposed,  and  came  at  length 
into  a war  which  stripped  the  English  of  nearly  all  Aqui- 
taine, until  it  was  restored  in  1303. 

Every  authority  in  those  times,  Avhich  could  make  war, 
could  grant  letters  of  reprisals.  But  Avheu  power  modem 
began  to  be  more  centralized,  tlie  sovereign  gave  to 
magistrates,  governors  of  provinces,  and  courts,  the  right  of 
issuing  them,  until  at  length  this  right  Avas  reserved  for  the 
central  government  alone.  In  France,  Charles  VIII.,  at  the 
instance  of  the  States-general,  held  at  Tours,  in  1484,  first 
confined  this  poAver  to  the  king,  for,,  said  the  estates,  “ re- 
pi’isals  ought  not  to  be  granted  Avithout  great  deliberation  and 
knowledge  of  the  case,  nor  Avithout  the  formalities  of  laAV  in 
such  matters  required.”  The  ordinance  of  Louis  XIV.,  on 
the  marine,  published  in  1681,  prescribes  the  method  in  Avhich 
injured  persons,  — after  they  had  shown  the  extent  of  their 
damages  received  from  a foreigner,  and  after  the  king’s  am- 
bassadors had  taken  the  proper  steps  at  the  foreign  courts,  — 
should  receiA'e  letters  of  reprisals,  permitting  them  to  make 
prizes  at  sea  of  property  belonging  to  the  subjects  of  the 
state  which  had  denied  them  justice ; and  having  brought 
their  prizes  before  the  court  of  admiralty,  should,  in  case 
everything  Avas  laAvful,  be  reimbursed  to  the  extent  of  their 
injuries. 

Since  the  end  of  the  17th  century  but  feAv  examples  have 
occurred  of  reprisals  made  in  the  time  of  peace,  and  a num- 
ber of  treaties  restrict  the  use  of  them  to  the  denial  or  delay 
of  justice.^ 

^ tVe  cite  from  Pliillimore  iii.,  16,  the  following  passage  in  regard  to  reprisals, 
and  the  time  that  ought  to  elapse  before  tliey  are  granted  on  complaint  of  denial 
of  justice.  “ By  the  24th  Article  of  the  treaty  hetween  England  and  Holland,  of 
the  .5th  of  April,  1854,  three  months  are  to  elapse  after  application  for  redre.ss 
before  reprisals  arc  granted  . . . By  the  17th  Article  of  the  tretity  between 

Fr.iiice  and  Holland,  27th  of  April,  1669,  four  months  are  to  elapse,  after  the  ap- 
plication for  redress,  before  reprisals  arc  granted.  The  same  period  is  prescribed 


192 


RIGHTS  OF  SELF-DEFENSE 


§119. 


§ 119. 

Besides  the  forms  of  violent  redress  here  mentioned,  there 
Pacific  been  an  attempt  to  establish  another  in  the  pres- 

Biockaiie.  which  the  name  of  Pacific  Blockade  has 

been  given.  Heffter  has  sanctioned  such  a right  by  his  great 
authority  (§  112  of  ed.  3),  and  Cauchy  has  given  to  it  a qual- 
ified support  (“  Droit  Maritime,”  ii.,  428).  Most  other  writ- 
ers on  this  branch  of  law  have  passed  it  over  in  silence,  Avhile 
Hautefeuille  (ii.,  272  ff.  of  the  2ded.)  and  Gesner  (“Le  Droit 
des  Neutres  sur  Mer,”  Berk,  186.5,  pp.  215-223)  with  Pistoye 
and  Duverdy  (“  Traite  des  Prises,”  376-378)  have  denied  its 
existence.  Comp,  an  article  in  the  “New  Englander”  for 
Jul}^  1869,  on  the  Alabama  (pp.  587-593),  by  the  author  of 
this  work. 

The  points  most  Avorthy  of  notice,  as  regards  Pacific  Block- 
ade, are,  in  brief,  these : — 

1st.  The  so-called  right  Avas  quite  unknoAvn,  we  believe, 
until  1827,  and  all  the  cases  of  it  occurred  betAveen  that  year 
and  1838.  They  AA^ere  five  in  number  : (1.)  The  block- 

ade of  the  coasts  of  Greece  by  the  three  poAvers,  Avho,  Avhile 
they  claimed  that  the  state  of  peace  Avith  Turkey  had  not 
ceased,  ended  the  affair  by  destroying  her  fleet  at  Navari- 
no.  (2.)  That  of  the  coasts  of  Portugal  by  France  in  1831. 
(3.)  That  of  NeAv  Granada  by  the  English  in  1836.  (4.)  That 
of  Mexico  by  the  Fi’ench  in  1838.  (5.)  That  of  the  Argen- 

tine Republic,  begun  in  1838  and  continued  for  ten  years. 
Three  of  these  ran  out  into  measures  of  violence,  Avhich  went 
beyond  mere  blockade. 

2d.  The  higher  French  courts  decided,  in  the  case  of  a 
Brazilian  A^essel  seized  for  breach  of  blockade,  that  a part  of 

by  the  tre.Uy  of  Ryswick  (Art.  IX.),  .find  by  the  tre.fity  of  Utrecht  (Art.  XVI.), 
11th  of  April,  1713,  between  France  and  England,  and  by  the  third  article  of  the 
commercial  treaty,  concluded  on  the  same  dtiy  between  the  same  parties.  The 
same  period  is  prescribed  by  the  famous  commercial  treaty  of  Vcrsaille.s,  1789,  be- 
tween France  and  England  (Art.  III.).  In  fact,  the  obligation  to  allow  a teinpits 
idoneum  to  elapse  before  reprisals  are  granted,  may  now  be  considered,  still  more 
reasonably  than  in  the  time  of  Valin,  ‘ le  droit  commun  des  ratio"‘>.’  ” 


§ n9. 


AND  EEDEESS  OF  INJUEIES,  ETC, 


193 


her  cargo,  ■which  had  been  condemned  by  an  inferior  court  on 
the  ground  of  being  contraband  of  war,  should  be  restored, 
because  there  was  no  war,  and  therefore  no  contraband  of 
war.  The  vessel  and  tlie  rest  of  the  cargo  had  been  ex- 
empted from  the  decision  of  the  lower  court  on  the  ground  of 
the  want  of  special  notification. 

3d.  These  transactions  had  the  characteristics  of  war,  al- 
though of  a Avar  that  was  partial  or  local,  and  for  the  most 
part  of  little  duration.  A Avar  may  be  waged  on  one  element 
and  not  on  the  other,  or  may  spend  its  force  chiefly  upon  one 
point,  or  may  last  for  a short  time  — six  Aveeks,  for  instance. 
Such  a Avar  is  not  taken  out  of  the  ordinary  category. 

4th.  The  right  of  blockade  is  one  affecting  neutrals,  and  a 
new  kind  of  exercise  of  this  right  cannot  be  introduced  into 
the  laAv  of  nations  Avithout  their  consent.  The  rights  most 
analogous,  civil  and  hostile  embargo,  may  be  said  to  be  dying 
out,  and  neutrals  liaA^e  not  given  their  consent  to  this  new 
form  of  restriction  of  their  rights.  They  Avould,  if  such  a 
practice  Avere  continued,  regard  a pacific  blockade  as  an  act 
of  Avar  under  a Avrong  name,  or  claim  damages  for  all  injury 
thereby  inflicted  on  their  commerce,  Avhich  only  war  rights 
can  interfei’e  Avith. 

In  concluding'  this  subject,  Ave  notice  a transaction  which 
may  be  introduced  by  a threat,  or  threatening  measures  deserv- 
ing the  name  of  a conditional  declaration  of  Avar,  or  contingent 
Avar,  and  which  resembles  pacific  blockade.  An  instance  Avill 
show  the  nature  of  such  cases.  Before  any  declaration  of 
Avar  against  Spain,  Admiral  Hosier,  in  1726,  obtained  the  re- 
lease of  tAA'o  English  vessels  detained  in  the  West  Indies, 
prevented  the  sailing  of  Spanish  galleons  from  Porto  Bello, 
and  gave  leave  to  proAusion  ships  of  the  Spaniards  to  start  on 
their  Avay,  on  condition  of  their  taking  out  neither  plate  nor 
fruits.  Spain  chose  to  consider  this  as  Avar,  Avhile  England 
regarded  it  a measure  of  security ; but  Sj)ain,  being  unpre- 
pai'ed,  only  complained  for  nearly  half  a year,  and  the  ambas- 
sador at  London  declared  that  the  longer  continuance  of  the 

O 

squadron  in  the  West  Indies,  would  be  a continuance  of  vol- 
13 


194 


EIGHTS  OF  SELF-DEFENSE 


§ 119. 


uiitary  hostilities  authorized  by  the  English  sovereign,  and  his 
king,  he  said,  would  look  on  tlieni  as  such.  Still,  Hosier  was 
not  ordered  to  withdraw,  and  the  Spaniards  began  to  besiege 
the  fort  of  Gibraltar.  Thej^  killed  over  three  hundred  British 
soldiers,  and  reprisals  were  not  ordered  by  England  until  after- 
wards. Nor  even  then  did  they  call  it  a war.  Preliminaries 
of  peace,  however,  were  made  between  the  parties,  including 
their  allies,  at  Paris  and  Vienna,  in  1727.  (See  Dumont,  viii., 
2,  146,  for  the  Convention  of  Paris.)  Tn  such  transactions, 
there  is  real  war  Avithout  declaration,  as  Mr.  Ward,  the  histo- 
rian, justly  maintains  in  his  “inquiry  into  the  manner  in 
Avhich  different  Avars  in  Europe  have  commenced,”  etc.,  pp. 
23-28  (London,  1805).  The  party  injured  has  a right  in 
such  cases  to  regard  the  condition  of  things  as  one  of  Avai', 
and  neutral  states,  in  the  event  of  a so-called  pacific  blockade, 
Avould  have  an  eqnal  right  to  claim  that  a state  of  Avar  existed. 
Thus,  Avhen  such  an  occurrence  takes  place,  Ave  have  this  sin- 
gular state  of  things  offered  to  us  : the  nation  injured  and 
the  neutrals  declaring  that  there  is  Avar,  the  nation  using  the 
violence,  that  there  is  not.  Surely  a state  of  peace  can  neAmr 
involve  such  contradictions. 

§ 120. 

War  between  independent  sovereignties  is,  and  ought  to  be. 
Commence-  avoivccl  opcH  Avay  of  obtaining  justice.  For  every 
war.^  Dec-  State  lius  a light  to  knoAV  Avhat  its  relations  are  to- 
laration.  ’wai'cls  tliose  Avitli  Avliom  it  has  been  on  terms  of 
amit}^  — Avhether  the  amity  continues  or  is  at  an  end.  It  is 
necessarjq  therefore,  that  some  act  sIioaa^  in  a Ava}^  not  to  be 
mistaken  that  a neAV  state  of  things,  a state  of  Avar,  has  begun. 

The  civilized  nations  of  antiquity  generally  began  AA'ar  by 
a declaration  of  their  purpose  so  to  do.  Among  the 
Jloman  prac-  Greeks,  a herald,  Avhose  person  Aims  sacred  and  invi- 
olate,  cariled  the  neAvs  of  such  liostile  intent  to  the 
enemy,  or  accompanied  an  ambassador  to  Avhom  this  business 
AA'as  committed.  Only  in  rare  cases,  Avhen  men’s  passions 
Avere  up,  was  Avar  aKy]pvKTo<i,  i.  e.,  such,  that  no  communica- 


§ 120. 


AND  REDRESS  OF  INJURIES,  ETC. 


195 


tions  by  heralds  passed  between  the  enemies.  Among  the 
Romans  the  ceremonies  of  making  known  tlie  state  of  war 
were  very  punctilious.  This  j^rovince  belonged  to  the  Fe- 
iiales,  a college  of  twenty  men,  originally  patricians,  whose 
first  duty  was  to  demand  justice,  res  reiJetere^  literally  to  de- 
mand back  property,  an  expression  derived  from  the  times 
Avhen  the  plunder  of  cattle  or  other  property  was  tlie  com- 
monest offense  committed  by  a neighboring  state.  Three  or 
four  of  the  college,  one  of  their  number  being  pater  patratus 
for  the  time,  and  so  the  prolocutor,  passed  the  bounds  of  the  of- 
fending state,  and  in  a solemn  formula,  several  times  repeated, 
demanded  back  what  was  due  to  the  Roman  people.  On  fail- 
ure to  obtain  justice,  there  was  a delay  of  three  and  thirty 
days,  when  the  pater  patratus  again  made  a solemn  protesta- 
tion that  justice  was  withheld.  Then  the  king  consulted  the 
senate,  and  if  war  was  decreed,  the  pater  patratus  again  vis- 
ited the  hostile  border,  with  a bloody  lance,  which  he  threw 
into  the  territory,  while  he  formally  declared  the  existence  of 
the  war.  This  custom,  which  seems  to  have  been  an  inter- 
national usage  of  the  states  of  middle  and  southern  Italy, 
continued  into  the  earlier  times  of  the  republic;  but  Avhen 
the  theatre  of  war  became  more  distant,  the  fetialis,  consul, 
or  prffitor,  contented  himself  Avith  hurling  his  lance  from  a pil- 
lar near  the  temple  of  Bellona  in  the  direction  of  the  hostile 
territory,  Avhile  the  declaration  of  Avar  itself  Avas  made  by  the 
military  commander  of  the  proAunce  through  an  ambassador. 
It  was  thus  ahvays  a principle  with  the  Romans,  as  Cicero 
(“  De  Officiis,”  i.,  14)  has  it,  “Nullum  helium  esse  justum, 
nisi  quod  aut  rebus  repetitis  geratur,  aut  denuntiatum  ante 
sit  et  indictum.”  But  the  form  satisfied  them,  and  they  cared 
little  for  the  spirit.^ 

So  also  in  the  Middle  Ages,  Avar  could  not  be  honorably 
begun  without  a declaration ; but  the  spirit  which  jieditEvai 
dictated  this,  seems  to  have  been,  as  Mr.  Ward 
remarks,  rather  a knightly  abhorrence  of  everything  under- 

1 For  tlie  Greeks,  see  Schomaun,  u.  s.  For  the  Romans,  Osenbriiggen,  pp.  27- 
34,  Bekker-Marquaidt,  Riim.  AUertkwn.,  iv.,  380  -388. 


196 


EIGHTS  OF  SELF-DEFENSE 


§ 120. 


.handed  and  treaclierous,  than  a desire  to  prevent  the  effusion 
of  blood  by  giving  the  enemy  time  to  repair  his  fault.  Even 
in  the  private  -warfare  Avhicdi  characterized  that  age,  as  much 
as  in  the  duel,  a challenge  or  formal  notice  to  the  enemy  Avas 
necessary.  The  declaration  of  Avar  Avas  made  by  heralds  or 
other  messengers : that  of  Charles  V.  of  France  against  Ed- 
Avard  III.,  Avas  carried  to  that  king  by  a common  servant,  the 
letter  containing  it  bearing  the  seals  of  France.  Such  formal 
challenges  Avere  sanctioned  by  laAV.  Thus  the  public  peace  of 
the  Emperor  Barbarossa,  in  1187,  contains  the  clause  that  an 
injured  party  might  prosecute  his  OAvn  rights  by  force,  provided 
he  gave  to  Ids  adversary  three  days’  notice  that  he  intended 
to  make  good  his  claims  in  open  AAmr.  And  the  Golden  Bull 
of  the  Emperor  Charles  IV.  in  1356,  forbids  invasions  of  the 
territory  of  others  on  pretext  of  a challenge  unless  the  same 
had  been  given  for  three  natural  days  to  an  adversary  in  per- 
son, or  publicly  made  knoAvn  before  Avitnesses  at  his  usual 
place  of  residence. ; and  this,  on  pain  of  infamy,  just  as  if  no 
challenge  liad  been  offered.^ 

The  modern  practice  ran  for  some  time  in  the  same  direc- 
Modevu  tion,  but  siiice  the  middle  of  the  eighteenth  century 
practice.  formal  declarations  have  extensively  not  been  made, 
and  are  falling  into  disuse.  Instances  of  the  same  may  be 
gathered  from  still  earlier  times.  Tims  no  declaration  pre- 
ceded the  expedition  of  the  Grand  Armada  in  1588,  — before 
Avhich  indeed  a state  of  hostilities  existed  in  fact,  — and  the 
Avar  between  England  and  Holland,  in  1664,  began  Avith  an 
act  of  the  English  Council,  authorizing  general  reprisals, 
Avhich  became  a full-blown  Avar  Avithout  any  declaration. 
Thus  also  the  war  of  Orleans,  so  called,  Avas  begun  by  Louis 
XIV.  in  1688,  before  he  issued  his  manifesto ; in  the  Avar  of 
the  Austrian  succession  the  battle  of  Dettingen  had  been 
fought  before  the  French  declared  Avar  against  Great  Britain 
and  Austria;  and  in  the  Seven  Years’  War  hostilities  began 
on  this  continent  betAveen  England  and  France  tAAm  years 

1 AVard,  ii.,  211  seq.  The  passage  is  in  Olenschlagt»’’s  ed.  of  the  Gchlen  BuJl, 
ch.  17.  (Frankf.  1766.) 


§ 121. 


AND  KEDKESS  OF  INJURIES,  ETC. 


197 


before  the  parties  to  this  important  war  made  their  declara- 
tions.^ 

This  disuse  of  declarations  does  not  grow  out  of  an  intention 
to  take  the  enemy  at  unawares,  which  would  imply 
an  extreme  degradation  of  moral  principle,  but  out  of  the  modehi 
the  publicity  and  circulation  of  intelligence  peculiar 
to  mcfdern  times.  States  have  now  resident  ambassadors  with- 
in each  other’s  bounds,  who  are  accurately  informed  in  regard 
to  the  probabilities  of  war,  and  can  forewarn  their  country- 
men. War  is  for  the  most  part  the  end  of  a long  thread  of 
negotiations,  and  can  be  generally  foreseen.  Intentions,  also, 
can  be  judged  of  from  the  prejiarations  which  are  on  foot,  and 
nations  have  a right  to  demand  of  one  another  what  is  the 
meaning  of  unusual  armaments.  It  is,  also,  tolerably  certain 
that  nations,  if  they  intend  to  act  insidious!}",  Avill  not  expose 
their  own  subjects  in  every  quarter  of  the  globe  to  the  embar- 
rassments- of  a sudden  and  unexpected  war.  And  yet  the 
modern  practice  has  its  evils,  so  that  one  cannot  help  Avishing 
back  the  more  honorable  usage  of  feudal  times. 

This  rule,  be  it  observed,  of  declaring  Avar  beforeliand,  so 
long  as  it  Avas  thought  obligatory,  only  bound  the  assailant. 
The  invaded  or  defensive  state  accepted  the  state  of  Avar  as  a 
fact,  Avithout  the  formalities  of  a declaration.^ 

§ 121. 

Grotius  considered  a denuntiatio  belli  to  be  necessary  for  the 
reason  that  the  war  might  appear  manifestly  to  be  a 
public  one,  Avaged  by  the  public  authority.  The  de-  of  war  con- 
nuntiatio  might  be  conditioned  on  refusal  to  render 
justice  or  unconditioned.  In  order  that  a Avar  should  be  just, 
i.  e.,  should  be  a Avar  capable  of  jural  consequences,  it  should 
be  publicly  decreed,  “ et  quidem  ita  decretum  publice  ut  ejus 
rei  significatio  ab  altera  partium  alter!  facta  sit.”  No  denunti- 

f Comp.  Bynkersh.,  Qucest.  J.  P.,  i.,  2,  and  among  modern  systematists  Philli- 
more,  iii.,  7.5-102. 

2 Under  a government  like  that  of  the  United  States,  when  an  Act  of  Congress 
creates  a state  of  war,  a formal  declaration  is  needless.  War  begins  with  a legis- 
lative act.  And  the  passage  of  this  can  generally  be  foreseen. 


198 


RIGHTS  OF  SELF-DEFENSE 


§ 121. 


atio  is  required  by  natural  law,  when  either  violence  is  repelled, 
or  punishment  is  demanded  from  the  person  himself  who 
has  done  the  Avroug.  Otherwise  interpellatio  is  required,  i.  e., 
formal  demand,  “to  make  it  appear  that  in  no  other  Avay  [ex- 
cept by  armed  force]  Ave  can  get  at  Avhat  is  ours  or  is  due  to 
us.”  Nor  is  it  true  that  war  cannot  be  Avaged  as  soon  as  de- 
clared. Fov  jure  gentimn  a declaration  needs  to  have  no  "delay 
after  it,  although  ex  naturali  jure  some  time  may  be  needed 
before  Avar  begins,  as  Avhen  a demand  is  made  on  the  opposite 
party  to  render  justice  (iii.,  3,  § 3,  5-12). 

Bynkershoek  (“  Quaest.  J.  P.,”  i.,  2)  denies  that  any  declar- 
ation is  needed.  He  asks  Avhether,  Avhen  justice  has  been 
demanded  and  refused,,  “vim  mutuam  fieri  vetabis?”  and 
replies,  “ I do  not  forbid  this,  but  Grotius  and  others  do,  unless 
a declaration  shall  have  preceded.”  That  is,  rerum  repetitio 
is  necessary;  but  all  formalities,  such  as  declaration,  spring 
from  imitation  of  Roman  usage.  And  the  preAmiling  senti- 
ment is,  that  delay  or  refusal  of  justice,  after  redress  demanded, 
is  of  itself,  Avithout  a special  notice,  good  ground  of  Avar. 

The  number  of  Avars  Avithout  declaration  Avithin  the  last 
three  centuries  is  quite  considerable.  Bynkershoek  (u.  s.) 
mentions  the  Avar  of  Spain  Avith  the  United  Provinces — Avhich, 
lioweA'er,  needed  a declaration  the  less  as  being  a Avar  betAveen 
a sovereign  and  liis  subjects  — and  that  of  Gustavus  Adolphus 
Avith  the  Emperor  Ferdinand  II.,  Avho  complained  that  no 
declaration  had  been  made,  and  received  for  reply  that  the 
Emperor  had  before  invaded  Prussia  Avithout  that  formality. 
Robert  Ward,  the  liistorian  of  international  laAV,  has  devoted 
to  this  matter  of  the  commencement  of  Avars  an  essay  pub- 
lished at  London  in  1805,  Avhich  is,  like  the  other  Avorks  of  this 
author,  excellent.^  From  the  historical  part  of  the  essay  Ave 
give  the  folloAving  list  of  Avars  Avithout  a declaration.  Besides 
the  tAAm  just  mentioned,  this  Avas  true  of  the  Avar  of  England 
and  Spain  in  Elizabeth’s  time,  Avhen  Drake’s  ravages  of  the 
Spanish  colonies  and  the  Grand  Armada  had  no  such  introduc- 

1 An  Ingniri/  into  the  Manner  in  which  the  Different  Wars  in  Europe  have  com- 
menced during  the  Last  Two  Centuries,  p.  72. 


§ 121. 


AND  EEDRESS  OF  INJURIES,  ETC. 


199 


tion ; of  the  war  between  Cromwell  and  the  Dutch,  in  which 
not  even  were  manifestoes  published  until  after  Blake  fought 
Van  Tromp  and  scoured  the  seas  in  quest  of  Dutch  ships; 
of  the  next  Dutch  war  of  1664,  in  Avhich  hostilities  were  not 
proclaimed  until  iMarch,  1665  ; of  the  war  of  “ devolution,”  as 
it  is  sometimes  called,  when  Louis  XIV.,  in  1667,  invaded  the 
Spanish  Netherlands  as  his  wife’s  inheritance ; of  the  long  war 
ended  by  the  peace  of  Ryswick,  in  which  Louis  issued  no  man- 
ifesto until  his  armies  were  in  the  Palatinate,  Avhere,  how- 
ever, the  League  of  Augsburg  gave  him  the  appearance  of  act- 
ing on  the  defensive ; of  the  great  war  of  the  Spanish  Succes- 
sion, Avhich  opened  many  months  before  a declaration  ; of 
Spain’s  attempts,  under  Alberoai,  in  1718,  on  Sardinia  and 
Sicily,  Avith  England’s  interference,  — the  declaration  here  fol- 
lowing by  more  than  four  months  Byng’s  destruction  of  the 
Spanish  fleet  at  Passaro;  — of  the  quarrel  betAveen  Great  Brit- 
ain and  Spain  in  1726,  made  up  by  the  peace  of  Vienna  of 
1727,  in  Avhich  Admiral  Hosier  obstructed  Spanish  navigation 
in  America  and  Spain  besieged  Gibraltar  Avithout  formalities, 
and  Avhich  might  be  regarded  as  reprisals  on  a large  scale ; of 
the  Avar  betAveen  the  same  parties  groAving,  in  1738,  out  of  the 
right  of  search  exercised  by  the  Spanish  rjuarda  costas,  and  in 
Avhich  there  Avas  no  proclamation  until  several  montlis  after 
letters  of  marque  and  reprisal  liad  been  issued  by  Great  Brit- 
ain ; of  the  contest  betAveen  Great  Britain  and  France  con- 
nected Avith  this  Avar,  as  parties  in  the  Avar  of  the  Austrian 
Succession  (comp.  § 120),  in  which  the  battle  of  Dettingen 
preceded  proclamations  of  Avar  by  nine  months ; of  the  inva- 
sion of  Silesia  in  1740,  Avithout  even  bringing  forward  any 
pretensions  or  claims,  and  thus  Avholly  against  all  laAV ; of  the 
disagreements  in  America  betAveen  France  and  Great  Britain, 
Avhich  led  to  Avar  there  in  1754,  and  Avhich  Avere  folloAved  by 
hostilities  on  the  sea  without  declaration  until  the  spring  of 
1756  (comp.  § 120)  ; of  the  invasions  of  Saxony  and  Bohemia  by 
Frederic  the  Great  in  the  same  year  ; and  of  the  war  between 
England  and  France  in  1778,  in  Avhich  tlie  actual  hostilities  of 
the  latter  occurred  many  weeks  before  war  Avas  proclaimed. 


202 


RIGHTS  OR  SELR-DEFENSE 


§ 123. 


and  all  power  of  prosecuting  claims  tlirougli  the  courts  of  the 
enemy  is  suspended  during  the  Avar ; all  commercial  transac- 
tions Avith  the  subjects  or  in  the  territory  of  the  enemy,  of 
Avhatever  kind,  except  ransom  contracts  (§  150),  Avhether 
direct  or  indirect  (as  through  an  agent  or  partner  Avho  is  a 
neutral),  become  illegal  and  Amid.  In  the  case  Avhere  the 
business  is  conducted  by  a neutral  partner,  his  share  in  the 
concern  alone  is  protected,  Avhile  that  of  the  belligerent’s  sub- 
ject is,  if  seized,  liable  in  his  oaaui  country  to  confiscation. 
(Comp.  § 183.) 

It  is  not  unusual,  hoAvever,  for  a belligerent  to  grant  to  its 
OAAur  subjects  a license  to  carry  on  a certain  specified 

Licpnfe  to  -ii  i ^ 

trade  with  trade  Avith  the  enemy,  Avhich,  if  the  other  party  al- 

the  enemy.  . . irl  t • 

loAA’S  it,  becomes  a sate  and  legitimate  traihc.  It  is 
common,  also,  for  the  subjects  of  one  belligerent  to  obtain 
such  a license  from  the  other ; but,  of  course,  this  of  itself  Avill 
not  protect  them  against  the  laAvs  of  their  OAvn  country. 
(Comp.  § 155.) 


§ 124. 


From  the  strict  theory  of  hostile  relations  laid  doAvn  above, 
it  Avould  folloAv,  (1)  that  an  enemy’s  subjects  Avithin 
subjects  and  the  coiiiiti'y  Avould  be  treated  as  jirisoners  of  Avar ; 
property  but  siicli  ilgor  is  uiilviiomi,  unless  in  measures  of  re- 

withinabel-  . 

ligercnt  s taliatioii.  1 lie  iiiost  sevci’e  treatment  ot  the  foreigner 
alloAved  by  modern  usage  is  to  require  him  to  leave 
the  country  Avithin  a certain  time.^  (2.)  'I’liat  enemies’  prop- 
erty Avithin  the  country  at  the  breaking  out  of  a Avar  Aims  liable 
to  confiscation.  This  principle  AAmuld  apply  also  to  debts  due 
to  them  at  that  time.^  And  it  Avould  be  a further  application 


1 Bonaparte  in  1S03,  upon  the  rupture  with  England  after  the  peace  of  Amiens, 
ordered  the  arre.st  of  all  Englislimen  in  France  between  .si.xtecu  and  sixty  years  of 
age,  that  they  might  serve  as  hostages  for  such  Frenchmen  as  might  bo  captured 
on  board  of  French  vessels  after  tlie  breach  of  peace  and  in  ignorance  of  it.  The 
Batavian  republic  was  bidden  to  issue  the  same  order.  (Garden,  viii.,  1.51.) 

- In  a case  that  came  before  the  Supreme  Court  of  the  United  States,  on  ap- 
peal, in  October,  1877,  debts  due  by  a person  in  A^irgiuia  to  a firm  in  Pliiladelphia 
were,  during  the  existence  of  the  Confederacy,  paid  over  to  a receiver,  after 
sequestration  by  decree  of  a district  Confederate  court.  The  firm  sued  to  recover 
the  debt.  The  court  of  the  United  States  denied  that  the  Confederacy  was  a de 


§ 124. 


AND  REDRESS  OF  INJURIES,  ETC. 


203 


of  it,  if  shares  in  the  public  stocks,  held  by  a foreign  govern- 
ment, were  confiscated.  With  regard  to  the  two  former  cases, 
the  Supreme  Court  of  the  United  States  has  decided,  in  accord- 
ance Avith  the  body  of  earlier  and  later  text-writers,  that  by 
strict  right  such  property  is  confiscable,  but  they  add  that 
such  a measure  requires  the  sanction  of  the  national  legisla- 
ture, Avhich,  it  is  to  be  hoped,  Avill  never  consent  to  disgrace 
the  country  by  an  act  of  that  kindd  For  the  usage  is  now  gen- 
eral, if  not  fixed,  AA'ith  the  single  exception  of  measures  of  re- 
torsion, to  alloAv  the  subjects  of  the  enemy  to  remain  Avithin 
the  territory  during  good  behaAnor,  in  the  enjoyment  of  their 
property,  or  to  give  them,  by  public  proclamation,  reasonable 
time  to  remoA’e  Avith  their  effects  from  the  country.  The  Eng- 
lish and  French  in  the  late  Crimean  Avar  alloAved  Eussian  ves- 
vels  six  weeks’  time  to  leave  their  ports  and  reach  their  desti- 
nation. In  many  cases  treaties  have  gh  en  additional  security 
to  the  goods,  claims,  and  persons  of  enemies’  subjects  so  situ- 
ated. The  treaty  of  1794,  betAveen  the  United  States  and 
Great  Britain,  often  called  in  the  United  States  Jay’s,  from  its 
American  negotiator,  declared  it  to  be  unjust  and  impolitic  to 
confiscate  debts  due  to  the  subjects  of  a nation  that  has  be- 
come hostile.^  It  Avas  also  stipulated  in  this  instrument  that 
the  citizens  of  either  power  might  remain  unmolested  during 
war,  in  the  dominions  of  the  other,  so  long  as  they  should  be- 
hav'e  peaceably,  and  commit  no  offense  against  the  laAvs;  and 

facto  government ; pronouncing  that  the  law  of  confiscation  was  passed  without 
authority,  and  that,  although  persons  having  jiroperty  in  their  possession  may 
sometimes  be  freed  from  liability  for  giving  it  up  on  account  of  the  force  put  upon 
them,  yet,  since  debts  ore  not  tangible  things,  “the  debtors  cannot  claim  release 
from  their  creditors  by  reason  of  the  coerced  payment  of  similar  sums  to  an  un- 
lawful combination.” 

i Comp.  Kent,  i.,  Lect.  3,  p.  59  seq. 

- In  Article  X.  it  is  provided  that  “neither  debts  due  from  individuals  of  the 
one  nation  to  individmils  of  the  other,  nor  shares  nor  monies  which  thev  mav  have 
in  the  public  funds  or  in  the  public  or  private  banks,  shall  ever,  in  any  event  of 
war  or  nation.al  difference,  be  sequestered  or  confiscated  ; it  being  unjust  and  im- 
politic that  debts  and  engagements,  contracted  and  made  by  individuals  having 
confidence  in  each  other  and  in  their  respective  governments,  should  ever  be  de- 
strojed  or  impaired  by  national  authority  ou  account  of  national  differences  and 
discontents.” 


202 


RIGHTS  OP  SELF-DEFENSE 


§ 123. 


and  all  power  of  prosecuting  clairus  tlirougli  tlie  courts  of  tlie 
enemy  is  suspended  during  the  Avar ; all  commercial  transac- 
tions Avitli  the  subjects  or  in  the  territory  of  the  enemy,  of 
Avhatever  kind,  except  ransom  contracts  (§  150),  Avhcther 
direct  or  indirect  (as  through  an  agent  or  partner  Avho  is  a 
neutral),  become  illegal  and  Amid.  In  the  case  Avhere  the 
business  is  conducted  by  a neutral  partner,  his  share  in  the 
concern  alone  is  protected,  Avhile  that  of  the  belligerent’s  sub- 
ject is,  if  seized,  liable  in  his  oaaui  country  to  confiscation. 
(Comp.  § 183.) 

It  is  not  unusual,  hoAvever,  for  a belligerent  to  grant  to  its 

OAAUi  subjects  a license  to  carry  on  a certain  specified 
trade  with  trade  AVith  the  enemy,  Avhicli,  if  the  other  party  al- 

the  enemy.  . ''  ....  t*'. 

loAA'S  it,  becomes  a safe  and  legitimate  traffic.  It  is 
common,  also,  for  the  subjects  of  one  belligerent  to  obtain 
such  a license  froiii  the  other  ; but,  of  course,  this  of  itself  Avill 
not  protect  them  against  the  laAvs  of  their  OAvn  country. 
(Comp.  § 155.) 


From  the  strict  theory  of  hostile  relations  laid  doAvn  above, 
Enemy-s  would  folloAv,  (1)  that  ail  eneiiiy’s  subjects  Avithin 
subjects  and  the  couiiti'y  woulcl  be  treated  as  prisoners  of  Avar  ; 

enemy's  i i i • 

property  but  sucli  Ti^or  IS  unknowii,  unless  in  measures  of  re- 

witliin  a bel-  . ^ 

ligerenfs  taliatioii,  llie  luost  sevei'e  treatment  of  tlie  foreigner 

country.  t ^ i • • i ^ 

allowed  by  modern  usage  is  to  require  liim  to  leave 
the  country  Avithin  a certain  tiinc.^  (2.)  That  enemies’  prop- 
erty Avithin  the  country  at  the  breaking  out  of  a Avar  Avas  liable 
to  confiscation.  This  principle  AAmiild  apply  also  to  debts  due 
to  them  at  that  tiine.^  And  it  Avould  be  a further  application 

1 Bonaparte  in  1S03,  upon  the  rupture  with  England  after  the  peace  of  Amiens, 
ordered  the  arre.st  of  all  Englishmen  in  France  between  si.xteen  and  sixt}'  years  of 
age,  tliat  they  might  serve  as  hostages  for  such  Frenchmen  as  might  be  captured 
on  board  of  French  vessels  after  tlie  breach  of  peace  and  in  ignorance  of  it.  The 
Batavian  republic  was  bidden  to  issue  the  same  order.  (Garden,  viii.,  1.51.) 

- In  a case  that  came  before  the  Supreme  Court  of  the  United  States,  on  .ap- 
peal, in  October,  1877,  debts  due  by  a person  in  Virginia  to  a firm  in  Philadelphia 
were,  during  the  existence  of  the  Confederacy,  paid  over  to  a receiver,  after 
sequestration  by  decree  of  a district  Confederate  court.  The  firm  sued  to  recover 
the  debt.  The  court  of  the  United  States  denied  that  the  Confederacy  was  a de 


§ 124. 


AND  REDRESS  OF  INJURIES,  ETC. 


203 


of  it,  if  shares  in  the  public  stocks,  held  by  a foreign  govern- 
ment, were  confiscated.  With  regard  to  the  two  foi  iner  eases, 
the  Supreme  Court  of  the  United  States  has  decided,  in  accord- 
ance with  the  body  of  earlier  and  later  text-writers,  that  by 
strict  right  such  property  is  confiscable,  but  they  add  that 
such  a measure  requires  the  sanction  of  the  national  legisla- 
ture, which,  it  is  to  be  hoped,  will  never  consent  to  disgrace 
the  country  by  an  act  of  that  kindd  For  the  usage  is  now  gen- 
eral, if  not  fi.xed,  with  the  single  exception  of  measures  of  re- 
torsion, to  alloAv  the  subjects  of  the  enemy  to  remain  within 
the  territory  during  good  behavior,  in  the  enjoyment  of  their 
property,  or  to  give  them,  by  public  proclamation,  reasonable 
time  to  remove  with  their  effects  from  the  country.  The  Eng- 
lish and  French  in  the  late  Crimean  Avar  alloAved  Russian  ves- 
vels  sixAA^eeks’  time  to  leave  their  ports  and  reach  their  desti- 
nation. In  many  cases  treaties  have  given  additional  security 
to  the  goods,  claims,  and  persons  of  enemies’  subjects  so  situ- 
ated. The  treaty  of  1794,  betAA'een  the  United  States  and 
Great  Britain,  often  called  in  the  United  States  Jay's,  from  its 
American  negotiator,  declared  it  to  be  unjust  and  impolitic  to 
confiscate  debts  due  to  the  subjects  of  a nation  that  has  be- 
come hostile.^  It  Avas  also  stipulated  in  this  instrument  that 
the  citizens  of  either  power  might  remain  unmolested  during 
Avar,  in  the  dominions  of  the  other,  so  long  as  they  shoiild  be- 
have peaceably,  and  commit  no  offense  against  the  laAvs;  and 

facto  government ; pronouncing  tliat  the  law  of  confuscation  was  passed  without 
authority,  and  tliat,  although  persons  having  ])ropcriy  in  their  possession  may 
sometimes  be  freed  from  liability  for  giving  it  up  on  account  of  the  force  put  upon 
them,  yet,  since  debts  ore  not  tangible  t/u'n^s,  “ the  debtors  cannot  claim  release 
from  their  creditors  by  reason  of  the  coerced  payment  of  similar  sums  to  an  un- 
lawful combination.” 

Comp.  Kent,  i , Lect.  .3,  p.  59  seg. 

2 In  Article  X.  it  is  ])rovided  that  “neither  debts  due  from  individuals  of  the 
one  nation  to  individuals  of  the  other,  nor  shares  nor  monies  which  they  mav  have 
in  the  public  funds  or  in  the  public  or  private  banks,  shall  ever,  in  any  event  of 
war  or  national  difference,  be  sequestered  or  confiscated  ; it  being  unjust  and  im- 
politic that  debts  and  engagements,  contracted  and  made  by  individuals  having 
confidence  in  each  other  and  in  their  respective  governments,  should  ever  be  de- 
stroyed or  impaired  by  national  authority  ou  account  of  national  differences  and 
discontents.” 


204 


RIGHTS  OF  SELF-DEFENSE 


§ 12L 


that,  if  either  government  desired  their  removal,  twelve 
months’  notice  should  he  given  them  to  this  effect.  Of  trea- 
ties containing  similar  provisions,  “a  list  lies  before  me,”  says 
Mr.  Manning,  “ too  long  for  insertion,  but  even  the  Barbary 
powers  have  in  a great  number  of  instances  concluded  such 
agx’eeraents.”  ^ 

With  regard  to  the  shares  held  b}"  a government  or  its  sub- 
jects in  the  public  funds  of  another,  all  modern  authorities 
agree,  rve  believe,  that  they  ought  to  be  safe  and  inviolate. 
To  confiscate  either  principal  or  interest  would  be  a breach 
of  good  faith,  would  injure  the  credit  of  a nation  and  of  its 
public  securities,  and  would  provoke  retaliation  on  the  prop- 
erty of  its  private  citizens.  “ The  Emperor  Napoleon  I.,  dur- 
ing his  stay  at  Posen,  imagining  that  the  cabinet  of  London 
had  the  intention  of  confiscating  stock  in  the  public  debt  be- 
longing to  Frenchmen,  ordered  his  minister  of  finance  to  ex- 
amine whether,  in  case  they  should  so  act,  it  would  not  be 
neeessary  to  have  recourse  to  the  same  rigor.  The  matter  is 
a very  delicate  one,  said  he  ; I am  not  willing  to  set  the  ex- 
ample, but  if  the  English  do  so,  I ought  to  make  reprisals. 
M.  Mollien  replied  that  such  an  act  was  so  contrary  to  Eng- 
lish policy  that  he  could  not  believe  it,  that  he  wished  the 
cabinet  of  London  -would  commit  such  a mistake,  but  that 
results  would  be  the  more  disastrous  for  them  if  it  were 
not  imitated.  On  this  occasion  he  sent  to  the  emperor  the 
memoir  of  Hamilton,^  the  friend,  counsellor,  and  minister  of 
Washington,  on  the  question  w'hether  the  political,  more  even 
than  the  moral  rule,  did  not  forbid  every  government,  not 
only  to  confiscate  capital  which  had  been  lent  to  it  by  the 
subjects  of  a power  with  which  it  -was  at  xvar,  but  even  to 
suspend,  as  far  as  they  were  concerned,  the  payment  of  inter- 
est. Napoleon  did  not  insist  further  on  the  matter.”  ^ 

We  close  this  subject  wdth  referring  to  some  of  the  opinions 

^ Comment.,  p.  125. 

2 I’robahlv  the  letters  of  Camilliis.  See  the  note  at  the  end  of  tlii.s  section, 

3 From  a hiogr.nphy  of  Count  Mollien,  contributed  by  Michel  Chevalier  to  the 
Revue  des  Deux  Mondes,  in  the  year  1856,  cited  by  Verge'  on  De  Martens,  § 258, 
ed.  of  1858. 


§ 124. 


AND  REDRESS  OF  INJURIES,  ETC. 


205 


which  text  writers  have  expressed  on  the  several  points  con- 
sidered. As  for  immovable  property  in  an  enemy’s  country, 
Bynkershoek  says  that  in  strict  justice  it  can  be  sold  and 
confiscated,  “ iit  in  mobilibus  obtinet,”  but  he  adds  that  it  is 
a general  usage  throughout  Europe  for  the  rents  to  go  to  the 
public  treasury  during  war,  but  for  the  property  itself  after 
the  war  to  revert  “ ex  pactis  ” to  the  former  owner.  (“Qusest. 
Jur.  Pubh,”  i.  7.)  As  for  other  property,  except  debts,  all 
jurists  hold  the  same  doctrine  of  its  liability  to  confiscation. 
(Comp.  Manning,  p.  127,  ed.  I.)  As  for  debts,  even  Grotius 
decided  that  “ haec  non  belli  jure  qugesita  sed  bello  tantum  ex- 
igi  vetita.”  But  Bynkershoek  (u.  s.),  while  he  mentions  that 
the  right  to  confiscate  them  had  been  questioned,  adds,  “ sed 
videtur  esse  jus  commune  ut  et  actiones  publicentur,  ex  eadem 
nempe  ratione  qua  corporalia  quaelibet.  Actiones  utique  sive 
credita  non  minus,  jure  gentium,  sunt  in  dominio  nostro  quam 
alia  bona  ; eccur  igitur  in  his  jus  belli  sequamur,  in  aliis  non 
sequamur?”  There  must,  howevei',  be  actual  confiscation. 
“If  the  sovereign,”  — Bynkershoek  goes  on  to  say,  — “has 
exacted  debts  due  to  his  enemies  from  his  subjects,  they  are 
duly  paid,  but  if  not,  at  peace  the  creditor’s  former  right  re- 
vives, because  occupation  in  war  consists  rather  in  fact  than 
in  jural  power.  Debts,  therefore,  if  not  confiscated  in  time 
of  war,  suffer  a temporary  suspension,  but  after  peace  return 
by  a sort  of  postliminy  to  their  old  ovner.”  Accordingly,  he 
adds  that  treaties  often  provide  for  the  non-payment  to  the 
creditor  of  confiscated  debts.  Vattel  takes  the  same  ground 
as  to  debts,  but  adds  that  all  the  sovereigns  of  Europe  have 
departed  from  this  rigor,  and,  as  the  usage  has  altered,  he  wdio 
sliould  act  contrary  to  it  would  injure  the  public  faith.  (B. 
iii.,  5,  § 77.)  Mr.  jManning  says  that  “ debts  due  from  indi- 
viduals to  the  enemy  may  be  confiscated  by  the  rigoi  ous  ap- 
plication of  the  rights  of  war — but  the  exercise  of  this  right 
has  been  discontinued  in  modern  warfare  ; and  it  may  be 
regarded  as  established,  that  though  debts  cannot  be  claimed 
by  an  enemy  during  war,  yet,  that  the  right  to  claim  pay- 
ment revives  on  the  return  of  peace.”  (Pages  129, 130.)  Dr. 


200 


RIGHTS  OF  SELF-DEFENSE 


§ 124, 


Wheaton  says  that  for  nearly  a century  and  a half  pi'evious 
to  the  French  revolution,  no  instance  of  confiscation  of  debts 
had  occurred,  with  the  simple  exception  of  the  Silesian  loan, 
in  1753.  And  he  sums  up  his  view  of  international  law  on 
this  point  in  the  words,  that  property  of  the  enemy  found 
Avithin  the  territory  of  the  belligerent  state,  or  debts  due  to 
its  subjects  by  the  government  or  individuals,  at  the  com- 
mencement of  hostilities,  are  not  liable  to  be  seized  and  con- 
fiscated as  a prize  of  Avar.  This  rule,  he  adds,  is  frequently 
enforced  by  treaty  stipulations,  but  unless  it  be  thus  enforced, 
it  cannot  be  considered  as  an  inflexible,  though  an  established 
rule.  (“  Elements,”  iv.,  i.  345-347.) 

Finally,  as  to  public  debts  due  to  individual  subjects  of  the 
enemjs  I Avill  cite  but  the  single  authority  of  Mr.  Manning: 
“ One  description  of  property  is  invariably  respected  during 
Avai’,  namely,  the  sums  due  from  the  state  to  the  enemy,  such 
as  the  property  Avhich  the  latter  may  possess  in  the  public 
funds.  This  is  justly  regarded  as  entrusted  to  the  faith  of 
the  nation  ; and  during  the  most  bitter  animosity  of  our  Avars 
Avith  France,  no  attempt  has  been  made  on  either  side  to 
confiscate  such  property,  Avhich  cannot  be  touched  Avithout  a 
violation  of  public  faith.”  ^ 

1 In  the  Letters  of  Camilhis,  written  by  Alexander  Hamilton  just  after  Jay’s 
treaty  in  1795,  this  subject  is  considered  at  length,  jiarticularly  in  letters  18-20. 
( IForts,  vol.  vii.)  In  letter  19  he  examines  the  right  to  confiscate  or  sequestrate 
private  debts  or  property  on  the  ground  of  reason  and  principle.  He  admits  at 
the  outset  the  proposition  that  every  individual  of  the  nation  with  whom  we  are 
at  war  is  our  enemy,  and  his  property  liable  to  capture.  To  this  there  is  one  ad- 
mitted exception  respecting  enemy’s  property  in  a neutral  state,  but  this  is  owing 
to  the  right  of  the  neutral  nation  alone.  Reason,  he  maintains,  “ suggests  an- 
other exception.  AVhenever  a government  grants  permission  to  foreigners  to  ac- 
quire property  w’ithin  its  territories,  or  to  bring  and  deposit  it  there,  it  tacitly 
promises  protection  and  securit3^”  “ The  property  of  a foreigner  jilaced  in  an- 
other country,  by  permission  of  its  laws,  may  justly  be  regarded  as  a deposit  of 
which  the  societv  is  a trustee.  How  can  it  he  reconciled  with  the  idea  of  a trust, 
to  take  the  projierty  from  its  owner  when  he  has  personallj'  given  no  cause  for 
the  de])rivation  1 ” Goods  of  enemies  found  elsewhere  differ  from  those  which 
are  in  our  country,  since  in  the  latter  case  there  is  a reliance  on  our  hospitality 
and  justice.  And  the  same  argument  which  would  confiscate  the  goods  would 
seize  the  persons  of  enemies’  subjects.  The  case  of  property  in  the  public  funds 
is  still  stronger  than  that  of  private  debts. 


§ 126. 


AIsT)  EEDEESS  OF  INJUEIES,  ETC. 


207 


§ 125. 

If  eacli  and  all  on  the  one  side  were  enemies  to  each  and 
all  on  the  other,  it  would  seem  that  every  person 

^ Have  all  in 

had  a rig’ht,  so  far  as  the  municipal  code  did  not  for-  each  hostile 
bid,  to  fall  upon  his  enemy  wherever  he  could  find  to  carry  on 

^ ♦ wai*  ^ 

him;  that,  for  instance,  an  invading  army  had  a right 
to  seize  on  all  the  property  and  persons  within  reach,  and  dis- 
pose of  them  at  discretion.  But  no  such  unlimited  enmity  is 
now  known  in  the  usages  of  nations.  It  is  to  be  hoped  that 
the  theory  from  which  such  conseqirences  flow  will  be  aban- 
doned and  disappear  altogether.  The  true  theory  seems  to  be 
that  the  private  persons  on  each  side  are  not  fully  in  hostile 
relations,  but  in  a state  of  non-intercourse,  iu  a state  wherein 
the  rights  of  intei’course,  only  secured  by  treaty  and  not  de- 
rived from  natural  right,  are  suspended  or  have  ceased  ; while 
the  political  bodies  to  which  they  belong  are  at  war  with  one 
another,  and  they  only.  Of  course  until  these  political  bod- 
ies allow  hostile  acts  to  be  performed,  such  acts,  save  iu  self- 
defense,  may'uot  be  performed  ; and  accordingly  the  usages 
of  war  visit  with  severity  those  who  fight  without  a sanction 
from  their  governments.  The  plunder  which  such  persons 
seize  belongs  not  to  themselves  but  to  the  public,  until  public 
authority  gives  them  a share  in  it. 

§ 126. 

There  has  Ions;  been  a difference  between  the  treatment  of 
enemies’  property  — including  in  this  term  the  property  of  in- 

The  result  which  Hamilton  reaches  is  sound,  but  if  we  admit  the  principle  that 
every  individual  belonging  to  the  belligerent  nation  is  an  enemy,  and  every 
enemy’s  property  liable  to  capture,  we  must  deny  the  validity  of  exceptions,  un- 
less treatv  or  usage  has  established  them.  The  foreigner  brought  his  property 
here,  it  can  at  once  be  said,  knowing  the  risk  he  might  run  in  the  event  of  a war. 
■Why  should  he  not  incur  the  ri.<k  ? He  should  incur  it,  say  the  older  practice 
and  the  older  authorities.  He  .should  not,  says  the  modern  practice,  although  in- 
tcrnation.al  law  in  its  rigor  involves  him  in  it.  He  should  not,  according  to  the 
true  principle  of  justice,  because  his  relation  to  the  state  at  war  is  not  the  same 
with  the  relation  of  his  sovereign  or  government ; because,  in  short,  he  is  not  in 
the  full  sense  an  enemy. 


208 


RIGHTS  OF  SELF-DEFENSE 


§ 126 


dividual  subjects  of  the  hostile  state  — on  land  and  on  the 
Treatment  *^1’  'noi’e  generally  between  such  as  falls  within 

property  on  ^lic  powcv  of  invading  armies,  and  such  on  the  sea  and 
lancian'asea.  coast  as  falls  witliiii  the  power  of  armed 

vessels.  The  former,  as  we  shall  see  when  we  come  anon  to 
consider  the  laws  and  usages  of  warfare,  is  to  a certain  extent 
protected.  Tlie  latter,  owing  to  the  jealous  feelings  of  com- 
mercial rivalship,  hardened  into  a system  by  admiralty  courts, 
has  been  extensively  regarded  as  lawful  prey.  ^Ye  must,  how- 
ever, admit  that  there  is  some  pretense  of  leason  for  this  dif- 
ference of  practice  upon  the  two  elements.  For,  first,  an 
enem3"’s  intercourse  with  other  states  by  sea  more  directly  in- 
ci-eases  his  capacity  to  sustain  and  protract  the  war.  This  is 
especially  true  of  importations  of  articles  necessary  for  the  car- 
rying on  of  the  war.  And  secondly,  there  is  a vast  difference 
on  the  score  of  humanity  between  land  and  maritime  capture. 
On  the  land,  interference  Avith  private  propeidy',  by  stripping 
families  of  their  all,  is  often  the  source  of  the  deepest  misery. 
Even  if  pillage  on  the  land  be  entirely  given  up,  the  presence 
of  an  inv'ading  army  in  a countr}',  the  expense  of  warfare  on 
the  land,  the  contributions  and  requisition  which  can  never 
entirely  cease,  the  suspension  of  industry  in  invaded  districts, 
or  by  the  call  of  a multitude  of  men  to  defend  their  country, 
are  far  beyond  the  evils  of  naval  warfare.  It  also  embitters 
feeling,  and  drives  non-combatants  into  guerilla  warfare  or 
into  the  regular  service.  Invasion  always  arouses  a national 
spirit ; but  invasion  with  plunder  rather  defeats  the  end  of 
Avar  than  promotes  it,  until  a nation  is  boAved  doAvn  to  the 
dust.  And  at  that  point  of  time  it  disables  the  conquered 
from  giving  the  compensation  for  Avhich  the  Avar  was  set  on 
foot.  But  capture  on  the  sea  is  effected  for  the  most  part 
Avithout  much  fighting  ; it  rather  dejDrives  the  foe  of  his  com- 
forts and  means  of  exchanging  his  superfluities  than  destroys 
the  necessaries  of  life  ; and  it  afflicts  more  directly  the  classes 
Avhich  have  some  influence  upon  the  government,  as  Avell  as 
the  resources  of  the  government  itself,  than  the  day-laborer 
and  the  cultivator  of  the  soil,  Avho  have  special  claims  to  be 
humanely  treated. 


§ 127. 


AND  REDRESS  OE  INJURIES,  ETC. 


209 


§ 127. 

On  the  land,  in  addition  to  standing  armies,  a militia  and 
volunteers,  often  commanded  by  regular  officers,  have  Force.sem- 
been  employed  in  carrying  on  Avar,  especially  in  na- 
tional  defense.  As  the  different  military  corps  are  p* 
frequently  united  in  their  operations,  and  no  great 
harm  can  be  done  by  the  less  disciplined  if  under  proper  of- 
ficers; to  employ  a militia  or  volunteers  can  furnish  no  just 
ground  for  cojnplaint.  On  the  sea  the  practice  of  commercial 
states  has  long  been  to  make  use  not  only  of  public  but  also 
of  private  armed  vessels  for  the  purpose  of  doing  injury  to  the 
enemy.  This  usage  in  Europe  runs  back  to  the  time  when 
permanent  public  Jiavies  scarcely  existed ; for  during  a con- 
siderable part  of  the  Middle  Ages,  the  European  states,  having 
small  fleets  or  none  at  all,  impressed  or  hired  merchant  A^essels 
for  the  uses  of  Avar.  Private  persons  also  engaged  in  naval 
AA'arfare  on  their  own  account,  employing  their  oavu  vessels 
either  at  the  public  expense  — called  Kriiyssers,  cruisers,  by 
the  Dutch  ; or  at  their  OAvn  expense  — Kapers,  Vrylmyters^ 
captors,  free-plunderers  ; or  hiring  a public  vessel  with  a crew 
and  outfit  of  their  oAvn  ; of  Avhich  last  description  an  expedi- 
tion undertaken  in  the  reign  of  Louis  XIV.,  against  the  Por- 
tuguese at  Rio  Janeiro,  to  get  satisfaction  for  an  insult  on  a 
French  ambassador,  Avas  an  example.^ 

A private  armed  A'essel  or  privateer  is  a A^essel  owned  and 
officered  by  private  persons,  but  acting  under  a commission 
from  the  state,  usually  called  lettei's  of  marque.^  It  answers 
to  a company  on  land  raised  and  commanded  by  private  per- 
sons, but  acting  under  rules  from  the  supreme  authority,  rather 
than  to  one  raised  and  acting  without  license,  which  Avould 
resemble  a privateer  without  commission.  The  commission, 
on  both  elements,  alone  gh^es  a light  to  the  thing  captured, 

1 Bvnkevsli.,  Qiaest.  J.  P.,  i.,  18;  Ortolan,  ii.,  52.  Martens,  Les  Armatcurs, 
chap.  i. 

2 Eroiii  the  sigiiitic.iiioii,  border,  the  marches,  it  is  sail,  ns  heing  letters  of  license 
to  go  across  the  boundary  and  make  reprisals,  and  thus  referring  first  to  expedi- 
tious on  I he  land. 


14 


210 


EIGHTS  OF  SELF-DEFENSE 


§ 127. 


and  insures  good  treatment  from  tlie  enemy.  A private  vessel 
levying  war  withont  sucli  license,  although  not  engageil  in  a 
piratical  act,  would  fare  hardly  in  the  enemy’s  hands. 

The  right  to  employ  this  kind  of  extraordinary  naval  force 
is  unquestioned,  nor  is  it  at  all  against  the  usage  of  nations  in 
times  past  to  grant  commissions  even  to  privateers  owned  by 
aliens.  The  advantages  of  employing  privateers  are  (1)  that 
seamen  thrown  out  of  work  by  war  can  thus  gain  a livelihood 
and  be  of  use  to  their  country.  (2.)  A nation  which  main- 
tains no  great  navy  is  thus  enabled  to  call  into  activity  a tem- 
porary force,  on  brief  notice,  and  at  small  cost.  Thus  an  in- 
ferior state,  with  a large  commercial  marine,  can  approach  on 
the  sea  nearer  to  an  equality  Avith  a larger  rival,  having  a 
poAverful  fleet  at  its  disposal.  And  as  aggressions  are  likely 
to  come  from  large  poAvers,  privateering  may  be  a means,  and 
perhaps  the  only  effectual  means,  of  obtaining  justice  to  Avhich 
a small  commercial  state  can  resort. 

§ 128. 

On  the  other  hand,  the  system  of  privateering  is  attended 
Evils  of  pri-  ''vith  very  great  evils.  (1.)  The  motive  is  plunder. 
vateeriDg.  jj.  jg  impossible  that  the  feeling  of  honor  and 

regard  for  professional  reputation  should  act  upon  the  priva- 
teersman’s mind.  And  Avheu  his  occupation  on  the  sea  is 
ended,  he  returns  Avith  something  of  the  spirit  of  a robber  to 
infest  society.  Add  to  this  that  it  is  by  no  means  certain  that 
the  motive  of  plunder  or  booty  can  be  long  endured  in  the 
international  law  of  Christian  nations.  (2.)  The  control  over 
such  crews  is  slight,  Avhile  they  need  great  control.  They  are 
made  up  of  bold,  laAvless  men,  and  are  Avhere  no  superior 
authority  can  Avatch  or  direct  them.  The  responsibility  at  the 
best  can  only  be  remote.  The  officers  Avill  not  be  apt  to  be 
men  of  the  same  training  Avith  the  commanders  of  public 
ships,  and  cannot  govern  their  creAvs  as  easily  as  the  masters 
(if  commercial  vessels  can  govern  theirs.  (3.)  The  evils  are 
heightened  Avhen  privateers  are  employed  in  the  execution  of 
belligerent  rights  against  neutrals,  Avhere  a high  degree  of 


§ 128. 


AND  EEDEESS  OF  INJUEIES,  ETC. 


211 


character  and  forbearance  in  the  commanding  officer  is  of 
especial  importance. 

Hence  many  have  felt  it  to  be  desirable  that  privateering 
shonld  be  placed  under  the  ban  of  international  law,  xe.^timnny 
and  the  feeling  is  on  the  increase,  in  our  age  of  hu-  * j p^fTateir- 
manity,  that  the  system  ought  to  come  to  an  end. 

We  cite  as  expressing  this  feeling  only  writers  belonging  to  our 
own  country.  Dr.  Franklin,  in  several  passages  of  his  corre- 
spondence, makes  decided  protests  against  it,  as  well  as  against 
the  spirit  of  plunder  in  which  it  originates.  “ Tlie  practice  of 
robbing  merchants  on  the  high  seas,  a remnant  of  the  ancient 
piracy,  though  it  may  be  accidentally  beneficial  to  particular 
jiersons,  is  far  from  being  profitable  to  all  engaged  in  it,  or  to 
the  nation  tliat  authorizes  it.”  “ There  are  three  employ- 
ments which  I wish  the  law  of  nations  would  protect,  so  that 
they  should  never  be  molested  nor  interrupted  by  enemies  even 
in  times  of  war : I mean  farmers,  fishermen,  and  merchants.” 
In  some  observations  on  war,  he  pursues  this  subject  of  the 
evils  of  privateering,  at  great  lengtli,  and  ends  thus:  “ There 
is  then  the  national  loss  of  all  the  labor  of  so  many  men  during 
the  time  they  have  been  employed  in  robbing,  who,  besides, 
spend  what  they  get  in  drunkenness  and  debauchery,  lose  their 
habits  of  industry,  are  rarely  fit  for  any  sober  business  after  a 
jjeace,  and  serve  only  to  increase  the  number  of  highwaymen 
and  housebreakers.”  ^ 

Privateering,  says  Chancellor  Kent,  “ under  all  the  re- 
strictions which  have  been  adopted,  is  very  liable  to  abuse. 
The  object  is  not  fame  or  chivalric  warfare,  but  plunder  and 
profit.  Tlie  discipline  of  the  crews  is  not  apt  to  be  of  the 
highest  order,  and  privateers  are  often  guilty  of  enormous  ex- 
cesses, and  become  the  scourges  of  neutral  commeijce.  Under 
the  best  regulations  the  business  tends  strongly  to  blunt  the 
sense  of  private  right,  and  to  nourish  a lawless  and  fierce 
spirit  of  i-apacity.”  ^ 

Dr.  Wheaton  says,  that  “ this  practice  has  been  justly  ar- 

1 Franklin’.s  Works,  edited  by  Sparks,  ix.,  41,  4G7. 

2 Kent,  i.,  97,  Lect.  5. 


212 


RIGHTS  OF  SELF-DEFENSE 


§ 128. 


raigned,  as  liable  to  gross  abuses,  as  tending  to  encourage  a 
spirit  of  lawless  depredation,  and  as  being  in  glaring  contra- 
diction to  the  more  mitigated  modes  of  warfare  practiced  by 
land.”  1 

Dr.  Franklin  expressed  bis  feelings  in  regard  to  privateer- 
Enaeavors  ing’  i”  treaty  of  1785,  between  the  United 
Yareeiang  by  States  aiid  Pi’ussia,  which  he  drew  up.  In  this  treaty 
treaty.  (Article  23,  end)  it  was  provided  that  neither  of 
the  parties  should  grant  or  issue  any  commission  to  any  pri- 
vate armed  vessels  against  the  other,  empowering  them  to 
take  or  destroy  its  trading  vessels,  or  to  interrupt  commerce. 
On  the  expiration  of  the  treaty  in  1799,  this  article  was  not 
renewed.  Another  article  of  the  same  treaty  deserves  men- 
tion, which  engages,  that  in  war,  all  regular  commerce  of 
either  party,  being  neutral,  with  the  enemy  of  the  other,  shall 
not  be  interrupted.  But  before  this  treaty  with  Prussia,  an 
unfulfilled  agreement  had  been  made  between  Sweden  and  the 
United  Provinces,  as  early  as  1675,  to  terminate  this  practice. 
Russia,  in  1767,  and  the  following  years,  abstained  from  giv- 
ing commissions  of  this  nature,  but  made  use  of  them  again 
in  1770.  In  1792,  the  French  legislative  assembly  agreed  to 
suppress  privateering,  but  the  revolution  soon  made  this  a 
dead  letter.^  After  the  French  revolution,  although  privateer- 
ing continued  to  receive  the  sanction  of  the  nations,  some  few 
voices  were  lifted  up  against  it,  and  even  against  all  capture 
of  merchant  vessels  pursuing  a lawful  trade.  Thus,  the  re- 
vieAver  of  a pamphlet  entitled  “ War  in  Disguise,”  (“  Edin- 
burgh Review,”  No.  15,  p.  14),  says  : “ We  cannot  help  think- 
ing that  the  pi'actice  of  maritime  capture  is  inconsistent  with 
the  generous  and  enlightened  notions  of  public  hostility,  Avhich 
were  brought  to  maturity  in  the  last  century,  and  that  it  is  a 
stain  upon  that  lenient  and  refined  system  of  policy,  by  which 
the  history  of  modern  Europe  is  distinguished  from  that  of 
the  rest  of  the  world.” 

Tlie  most  important  step  towards  the  entire  abolition  of 
privateering,  has  been  taken  in  quite  recent  times.  Tlie  pow- 
1 Elements,  iv.,  2,  § 10.  ^ Kent,  i.,  98;  Ortolan,  ii.,  54. 


§ 128  AND  REDRESS  OF  INJURIES,  ETC.  213 

ers  which  concluded  the  treaty  of  1856,  at  Paris,  united  in 
a declaration,  by  the  first  article  of  which  “privateer- 

^ Troatv  of 

ing  is,  and  remains  abolished.”  (Comp.  § 190.)  Pari.sin 
Other  states  were  invited  to  adopt  the  principles  of 
this  declaration,  hut  it  was  agreed  that  they  must  he  accepted 
as  a whole  or  not  at  all. 

The  United  States,  among  other  powers,  Avere  invited  to 
become  a party  to  this  declaration.  The  Secretary 
of  State,  Mr.  Marcy,  in  a letter  of  July  28,  1856,  tiiTuime°d 
addressed  to  M.  de  Sartiges,  minister  of  France  at 
Washington,  declined  the  proposal,  although  it  secured  Avhat 
this  country  had  so  long  been  Avishing  for,  — the  greater  free- 
dom of  neutral  vessels.  The  reluctance  to  adopt  the  princi- 
ples of  the  declaration,  Avas  OAving  to  a cause  already  suggested 
— that  the  relinquishment  of  privateering  AA'onld  be  a gain  to 
nations  Avhich  keep  on  foot  a large  naA'al  force,  but  not  to  the 
United  States,  Avhere  a powerful  naAW  is  not  maintained,  on 
account  of  its  great  cost,  and  its  danger  to  civil  liberty.  On 
the  breaking  out  of  a Avar,  therefore,  Avith  a nation  powerful 
at  sea,  the  United  States  must  rely,  to  a considerable  extent, 
on  merchant  A’essels  converted  into  A’essels  of  AAmr.  The  sec- 
retary, hoAA^eA'er,  declares  that  our  government  Avlll  readily 
agree  to  an  arrangement,  by  Avhich  the  private  property  of  the 
subjects  or  citizens  of  a belligerent  poAA'er  shall  be  exempted 
from  seizure  by  public  armed  vessels  of  the  enemy,  except  it 
be  contraband  of  AA'ar,  and  that  “ Avith  this  Ave  Avill  consent 
to  the  placing  of  privateering  under  the  ban  of  the  laAv  of  na- 
tions.” It  Avill  be  the  policy  of  oirr  gOA'ernment,  hereafter,  it 
may  be  presumed,  in  all  treaties,  to  couple  the  abolition  of 
privateering  Avith  the  entire  immunity  of  merchant  ships  en- 
gaged in  a lawful  trade.^  (Comp.  § 190.) 

1 The  nnnotator  on  Dc  M.nrtens,  ecL  of  18.58,  M.  Verge,  in  speaking-  of  th's 
proposiiion  of  oiir  government,  expresses  himself  as  follow.s:  “ In  the  usages  of 
war  on  land,  the  soldiers  of  belligerent  powers  have  no  righr,  and  can,  in  tlie  way 
of  fact,  exercise  no  control  over  the  private  properly  of  the  subjects  of  the  hostile 
power.  Why  shonld  not  the  same  principles  be  applicable  to  maritime  war  ? The 
additional  proposition  of  ihe  cabinet  of  Washington,  is  eviilently  logical.  Vainly 
has  it  been  contended  (in  the  Journal  des  Debats  of  October  22,  18.56),  that  the 


214 


EIGHTS  OF  SELF-DEFENSE 


§ 128, 


One  of  Mr.  Buchanan’s  earliest  acts  after  coming  into  office, 
it  is  said,  was  to  direct  our  ministers  abroad  not  to  press  Mr. 
Marcy’s  propositions.  INIr.  Seward,  when  Secretary  of  State  at 
the  beginning  of  the  late  war,  directed  onr  ambassadors  in 
Great  Britain  and  France  to  negotiate  conventions,  with  the 
object  of  acceding  to  the  declarations  of  the  Treaty  of  Paris. 
His  plan  was  to  include  the  Confederate  States  in  the  Con- 
vention, and  thus  to  prevent  their  issuing  letters  of  marque 
against  our  commerce.  But  the  two  European  governments 
which  had  already  recognized  those  states  to  be  a belligerent 
power,  could  not  make  a treaty  which  would  include  them. 
As  ]Mr.  Dayton  put  it,  “ Such  accessions  by  us  ...  . would 
not  at  all  enlarge  our  rights,  as  against  a belligerent  power 
not  a party  to  the  treaty  ; nor  would  it  bind  these  European 
governments  to  enforce  tlie  laws  of  piracy  as  against  such  bel- 
ligerent power  not  a party  to  the  treaty.  If  they  admit  the 
Confederate  States  as  a belligerent  power,  and  recognize  them 
for  even  commercial  purposes,  ....  our  accession  to  the 
Treaty  of  Paris  Avill  not  change  their  action  in  this  respect. 
Tlie  status  of  the  rebellions  States  as  it  respects  privateering, 
will  remain  where  it  was.  At  least  that  is  the  view  which  I 
think  Avill  be  taken  of  this  matter  in  England  and  France.” 
He  understood  the  views  of  those  governments  perfectly.  The 


chiiin  of  the  United  States,  tliat  land  and  sea  warfare  sliould  be  put  on  the  same 
f()Oiini>’,  is  not  admissible,  nor  just,  nor  good  even,  since  tiie  calamities  of  w.ar 
afford  this  advantage,  that  in  acting  on  the  population  of  countries,  tlie}"  render 
war  shorter  and  more  unfrequent.  It  seems  in  all  cases  difficult  to  maintain  the 
proposition  that  the  pillage  of  private  property  by  privateers  is  just,  rational,  and 
legitimate.  One  cannot  admit  that  private  property,  which  is  free  even  in  the 
enemy’s  land  itself,  on  the  soil  invaded  by  an  army,  victorious  and  invested  with 
the  right  of  conquest,  can  be  justly  taken  and  plundered  on  the  sea,  on  that  ele- 
ment free  by  its  nature,  which  is  neither  frieiidly  nor  hostile  territoiy.  Let  us 
hope  that  the  initiative  so  glorioiusly  adopted  by  the  Congre.ss  of  Paris,  will  be 
fruitful  for  the  future,  and  that  diplomacy  will  one  d.ay  reach  the  point  of  render- 
ing commerce  free  for  belligerents  as  for  neutrals,  that  private  goods  and  citizens, 
who  are  strangers  to  the  profession  of  arms,  will  be  freed  from  the  disasters  of 
war,  and  that  itrivate  property  will  remain  outside  of  contests  exclusively  concen- 
trated in  armies  acting  in  the  name  and  under  the  direction  of  the  public  ])Ower.” 
II.,  § 289.  Compare  the  recent  resolutions  of  the  chamber  of  commerce,  of  Ham 
burg  and  I Ire  men,  under  § 14-7,  itifra. 


§ 129. 


AND  EEDEESS  OF  INJURIES,  ETC. 


215 


ministers  of  the  two  powers  offered  to  sign  :i  convention,  with 
a declaration  to  the  effect  that  in  so  doing  their  governments 
would  not  thereby  undertake  any  engagement  which  should 
have  any  bearing,  direct  or  indirect,  on  the  internal  differ- 
ences then  prevailing  in  the  United  States.  This  was  not 
what  our  government  wanted,  and  the  matter  was  dropped. 
Nor  did  it  prove  to  be  of  importance  to  pursue  it,  for  nearly 
all  the  injuries  to  our  commerce  proceeded  from  public  vessels 
of  the  rebellious  States.  (Comp,  note  on  § 141.) 

Since  the  proposition  made  by  Mr.  Se'ward,  the  govern- 
ment of  the  United  States  has  shown  no  desire,  so  far  as 
we  are  informed,  to  accede  to  the  treaty  of  Paris.  In  regard 
to  the  other  proposition  — that  all  private  property  in  inno- 
cent trade,  of  whatever  nationality,  shall  be  exempt  from 
capture  on  the  ocean,  — an  important  provision  appears  in  the 
treaty  of  1871,  with  the  Kingdom  of  Italy,  in  which  the  par- 
ties contract  that  “ in  the  event  of  a war  between  them,  the 
private  property  of  their  respective  citizens  and  subjects,  with 
the  exception  of  contraband  of  war,  shall  be  exempt  from 
capture  or  seizure,  on  the  high  seas  or  elsewdiere,  by  the 
armed  vessels  or  by  the  military  forces  of  either  party ; it 
being  understood  that  this  exemption  shall  not  extend  to  ves- 
sels and  their  cargoes,  which  may  attempt  to  enter  a port 
blockaded  by  the  naval  forces  of  either  party.” 

For  what  seems  to  be  the  true  policy  as  to  marine  warfare, 
compare  § 190  below. 


§ 129. 

The  restrictions  on  privateering  are  of  three  kinds. 

1.  The  laws  of  some  states  narrow  the  range  of  their  op- 
erations, and  regulate  the  composition  of  their  crews. 

* • IvGstrictions 

They  ai'e  forbidden  to  cruise  in  the  rivers  or  within  on  privateer- 
the  sea-line  of  a hostile  state,  and  the  majority  of  a vent  its  ' 
crew  is  required  to  consist  of  natives.^  But  these 
rules  have  not  passed  into  international  law,  or  general  usage. 

2.  To  give  it  the  character  of  an  lionest  and  lawful  pursuit, 

1 Comp.  Ortolau,  ii.,  57-59  ; Hefftcr,  § 137. 


216 


RIGHTS  OF  SEIT'-DEFENSE 


§ 129. 


commissions,  as  already  said,  are  granted,  and  bonds  are  taken 
from  those  who  receive  the  letters  of  marque.  These  regula- 
tions, which  vary  with  the  municipal  law  of  each  country, 
subject  the  owners  and  officers  of  privateers  to  heavy  penalties 
in  case  of  transgression.^ 

It  is  only  the  commission  which  gives  an  interest  in  a prize, 
since  all  captures  vest  originally  in  the  state.  This  maxim 
draws  its  trutli  from  the  right  notion  of  war,  as  we  have  en- 
deavored to  set  it  forth,  — that  Avar  is  undertaken  by  the  state, 
for  the  sake  of  the  state,  and  against  another  state. 

3.  Many  treaties  provide  that  the  subjects  of  either  of  the 
treaty-making  poAvers,  Avhile  in  a state  of  peace,  shall  not  take 
out  letters  of  marque  from  a third  poAver  at  Avar  Avith  the 
other  party,  and  that  those  Avho  violate  this  provision  may 
be  held  by  the  other  party  to  haA’e  committed  the  crime  of 
piracy.  Such  treaties  of  longer  or  shorter  duration  have  been 
made,  for  instance,  by  the  United  States,  Avith  France,  Savb- 
den,  Prussia,  Great  Britain,  Spain,  Central  America,  and  Co- 
lombia. In  the  absence  of  such  treaties,  a neutral  may  Avith 
impunity  accept  a military  commission  from  a belligerent,  for 
sea  or  land  service.  But  municipal  hiAV  often  forbids  the  citi- 
zen or  subject  to  take  this  step.  (Comp.  §§  173,  176.)^ 

1 For  tlie  rules  of  responsibility  of  owners,  commanders,  and  sureties,  comp. 
Kent,  i , 98,  99,  Lcct.  v.  A maritime  ordinance  of  Pedro  IV.,  king  of  Aragon,  in 
135G,  speaks  of  such  security.  A sum  of  money  was  to  be  deposited  in  the  hands 
of  certain  public  officers  by  the  owner  of  a vessel.  Pardcssus,  Collection,  471. 
And  another  rule  of  1364,  p.assed  by  the  German  Hanse  towns,  to  the  same  effect, 
is  cited  by  De  Martens,  § 289,  note  c. 

2 By  Act  of  Congre.ss,  April  20,  1818,  citizens  are  forbidden  to  accept  commis- 
sions to  cruise  against  powers  at  amity  with  us.  — T.  S. 


§ 130. 


AND  REDRESS  OF  INJURIES,  ETC. 


217 


Section  II. — Laws  and  Usages  of  War,  especially  on  Land. 


§ 130. 

The  subject  of  prize,  or  the  rules  of  captured  property,^ 
es])ecially  on  the  sea,  we  shall  consider  by  itself  in 

. The  laws 

another  section.  At  present  we  pass  on  to  the  am-  andu.'^ages 
portant  topic  of  the  laws  and  usages  of  war.  These 
rules  are  necessarily  somewhat  vague  and  fluctuating,  partly 
because  they  have  less  to  do  with  justice  than  with  some- 
humanity,  where  clear  lines  of  definition  are  want- 
ing ; partly  because  much  must  be  left  to  the  discretion  of 
commanders  with  varying  dispositions  and  principles  ; partly 
because  nations  sometimes  enter  with  excited  passions,  some- 
times with  cool  calculation,  into  war,  and  their  spirit  will  mod- 
ify all  its  movements. 

Kotwithstanding  this  vagueness,  tlie  rules  of  war  have 
grown  in  humanity  and  mildness  in  recent  times. 

The  principal  causes  of  this  amelioration  are,  — 

1.  The  growth  of  a feeling  of  the  brotherhood  of  mankind 

fostered  by  the  spirit  of  Christianity.  Thus,  for  ^ ^ 

instance,  slavery  liaving  ceased  in  nearly  all  Chris-  theirameiio- 
tian  countries  under  the  benign  sway  of  the  Gospel, 

how  could  the  old  practice  of  enslaving  captives  taken  in  war 
fail  to  go  out  of  use  ? 

2.  The  influence  of  writers  such  as  Grotius,  and  the  exam- 
ple of  great  captains,  who  under  the  control  of  humane  feel- 
ings have  followed  a better  pi’actice. 

3.  The  greatly  increased  intercourse  among  Christian  coun- 
tries the  inhabitants  of  which  arc  lao  longer  strangers  to  one 

O o 

another,  and  beyond  each  other's  view,  but  are  connected  by 
various  ties,  which  soften  the  asperity  of  a sense  of  injuiy. 

4.  The  marked  separation  of  the  soldiery  as  a distinct  class 


yet  are  im- 
proving. 


^ Compare  for  this  section,  the  instructions  for  the  government  of  armies  of  the 
Uuitecl  States  in  the  field,  prepared  by  Dr.  Lieber,  revised  by  a board  of  officers, 
and  approved  by  the  President  in  1863. 


218 


RIGHTS  OF  SELF-DEFENSE 


§ 130, 


from  the  citizen.s,  and  an  impi-oved  feeling  among  soldiers 
themselves ; which  is  cine  to  the  substitution  of  regnlar  for 
irregular  ti’oops,  to  the  spread  of  professional  honor  among 
officers,  and  to  the  cooler  and  more  scientific  way  in  which 
Avars  are  carried  on. 

5.  Add  to  this  that  an  organized  commissariat  rendeis  it 
unnecessary  for  the  soldier  to  procure  his  daily  food  by  plun- 
der, Acdiile  modern  systems  of  finance  and  credit  meet  the  ex- 
penses of  armies  abroad.  “ Paid  soldiers  only,”  says  Colonel 
Napier,  “can  be  kept  under  discipline  ; soldiers  Avithout  money 
become  robbers.”  ^ 

6.  The  different  mode  of  AAmrfare  Avhich  the  use  of  gun- 
poAAxler  has  introduced.  “ There  is  as  much  difference,”  says 
the  same  authority,  “ betAA^een  the  modern  and  the  ancient  sol- 
dier, as  betAveen  the  sportsman  and  the  butcher.  The  ancient 
Avarrior,  fighting  Avith  the  SAvord  and  reaping  his  harvest  of 
death  Avhen  the  enemy  Avas  in  flight,  became  habituated  to  the 
act  of  slaying.  The  modern  soldier  seldom  uses  his  bayonet, 
sees  not  his  peculiar  victim  fall,  and  exults  not  over  mangled 
limbs  as  proofs  of  personal  proAvess.” 

§131. 

The  rules  Avhich  lie  at  the  basis  of  a humane  system  of  Avar 
are,  — 

Fundamcn-  . . 

tai  rules  of  1.  Ifiat  peace  IS  the  normal  state  of  Christian  na- 
tions,  to  AAdiich  they  are  bound  to  seek  to  return  from 
the  temporary  and  exceptional  interruptions  of  Avar. 

2.  That  redress  of  injuries  and  not  conquest  or  plunder  is 
the  laAvful  motiAm  in  Avar;  and  that  no  rule  of  morality  or  jus- 
tice can  be  sacrificed  in  the  mode  of  Avarfare. 

3.  That  Avar  is  Avaged  betAveen  governments  by  persons 
Avhom  they  authorize,  and  is  not  Avaged  against  the  passive 
inhabitants  of  a country. 

4.  That  the  smallest  amount  of  injury,  consistent  Avith  self- 
defense  and  the  sad  necessity  of  Avar,  is  to  be  inflicted.  And, 
finally, 

1 Peninsular  War,  iii,,  377  (Amer.  eel.  of  1842.) 


§ 133. 


AND  REDllESS  OF  INJURIES,  ETC. 


219 


5.  That  the  duties  implied  in  the  improved  usages  of  war, 
so  far  as  the}’  are  not  of  positive  obligation,  are  reciprocal,  like 
very  many  rules  of  intercourse  between  states,  so  as  not  to  be 
binding  on  one  belligerent,  as  long  as  they  are  violated  by  the 
other.  This  leads  ns  to  retaliation  in  war. 

§ 132. 

That  retaliation  in  war  is  sometimes  admissible  all  agi’ee : 
thus  if  one  belligerent  treats  prisoners  of  war  harshly, 
the  other  may  do  the  same ; or  if  one  squeezes  the  ex- 
penses of  war  out  of  an  invaded  territory,  the  other  may  fol- 
low in  his  steps.  Tt  thus  becomes  a measure  of  self-protection, 
and  secures  the  gi’eatest  amount  of  humanit}^  from  unfeeling 
military  officers.  But  there  is  a limit  to  the  rule.  If  one  gen- 
eral kills  in  cold  blood  some  hundreds  of  prisoners  Avho  embar- 
rass his  motions,  his  antagonist  may  not  be  justified  in  stain- 
ing himself  by  similar  crime,  nor  may  he  break  his  word  or 
oath  because  the  other  had  done  so  before.  The  limits  of  such 
retaliation  it  may  be  hard  to  lay  down.  In  the  case  of  Captain 
Asgill,  a prisoner  draAvn  in  order  to  retaliate  for  the  killing  of 
Captain  Huddy,  Washington  had  military  right  on  his  side. 
Asgill,  however,  AA’as  finally  set  free.  Yet  any  act  of  cruelty  to 
the  innocent,  any  act,  especially,  by  Avhich  non-combatants  are 
made  to  feel  the  stress  of  Avar,  is  what  braA'e  men  shrink  from, 
although  they  may  feel  obliged  to  threaten  it.  (Comp.  § 118, 
and  the  instructions  for  the  government  of  our  armies,  §§  27, 
28.) 

§133. 

The  use  of  poisoned  weapons,  the  poisoning  of  springs,  the 
employment  of  hired  assassins,  have  long  been  condemned,  as 
opposed  to  the  idea  of  Avar,  which  is  an  open  honorable  AA’ay 
of  seeking  redress.^  Such  practices  characterize  savage  Avar- 

1 Fov  the  Iiistoryof  the  rules  of  war,  compare  Mr.  AVard’s  7/ fstory,  chapters  ix,, 
XV.,  ami  elsewhere  ; also  an  excellent  article  in  the  Oxford  Essays  for  18.56,  by 
Mountagne  Bernard,  Esq.,  which  has  been  of  great  use  to  the  present  writer,  and 
from  which  the  passages  appearing  as  quotations  in  the  next  pages  are  taken. 
See  also  General  flalleck’s  Int.  Law  and  Laivs  of  War,  chap,  xvi.,  which  did  not 
appear  in  time  to  be  of  serTice  to  the  author  of  the  present  work  in  the  first 
edition. 


220 


RIGHTS  OF  SELF-DEFENSE 


§ 133. 


fare.  Grotiiis  (iii.,  4,  § 17)  is  decided  in  condemning  the  prac- 
tice of  poisoninjj  springs,  bnt  thiidis  that  it  is  risfht 

r.articulav  ^ ^ ^ ^ . i , • • 

niiasof  w.ar.  to  coiTiipt  Water  SO  that  it  cannot  be  used,  whidi  IS 

1 . As  to  un- 

lawful  woap-  110  woi’se  than  to  tiim  the  channel  of  a stream  in  a 
way.s  of  in-  direction  '.vliere  the  enemy  cnnnot  get  at  it.  He  says 

juring  the  , ion  i i i i 

enemy's  per-  aiso  (§  18),  that  Avliilst  hired  assassins  must  never  be 
used,  above  all  Avhen  they  violate  express  or  implied 
confidence,  an  enemy  may  undertake  to  kill  another  in  a pri- 
vate and  concealed  way.  This  he  supports  as  usual  by  testi- 
monies from  Greek  and  Roman  writers.  Modern  times  would 
use  another  language.  Bynkerslioek,  in  1737,  falls  beloiv  the 
standard  of  Grotius,  and  alloivs  of  fraud  to  any  extent  in  war. 
“ Ego  omiieni  cloluin  permitto,  sola  perfidia  excepta,  non  quod 
contra  liostem  non  quodlibet  liceat,  sed  quod,  fide  data,  qua- 
teiiiis  data  est,  hostis  esse  desinat”  (“Qiiaest.  J.  P.,”  i.  1), — 
opinions  which  it  gives  us  pain  to  cite  from  such  a writer. 
The  Greeks,  Romans,  and  some  other  states  of  antiquity,  pro- 
fessed to  abhor  these  methods  of  fraud  in  carrying  on  war.^ 
The  Emperor  Tiberius,  when  an  offer  was  made  him  to  put 
Arminiiis  out  of  the  way  by  poison,  rejected  it,  although  he 
committed  many  worse  crimes.  “Non  fraude,”  Tacitus  re- 
ports him  as  saying  (“  Aniiah,”  ' ii.  88),  “ iieqiie  occiiltis,  sed 
palaiii  et  armatiiin  populuin  Roniaiium  hostes  suos  ulcisci.” 
“Wherein,”  adds  the  historian,  “he  puts  himself  on  a level 
with  the  military  commanders  of  old,  who  had  disallowed  the 
use  of  poison  against  king  Pyrrhus.”  The  spirit  of  chivalry 
was  still  more  opposed  to  fraud  and  secret  stratagem.  Ene- 
mies often  gave  notice  of  an  intention  to  make  an  attack  at  a 
certain  time,  and  the  true  knight  rejected  every  advantage, 
save  that  which  his  skill  and  prowess  in  knightly  warfare  af- 
forded him. 

llie  laws  of  war  are  loose  in  "regard  to  the  instruments  of 

2.  Allowable  des^fb  used  against  an  enemy.  Formerly  chain-shot 

niwiem*"'  I’ed-liot  sliot  wei’e  objected  to,  but  they  do  not 

seem  to  be  now.  “ Now  invention  racks  itself  to 

^ Comp.  Dioni'.s.  Hiil.,  Antiq.,  iii.,  8,  oi/5’  e/c  tov  epavepou  iiridevTo  ijixlv,  is  h Koivhs 
d|io7  TOV  iroXe/xou  v6/iOS,  aW'  inrh  okStoum. 


§ 133. 


AND  REDRESS  OF  INJURIES,  ETC. 


221 


produce  the  biggest  gnii,  the  deadliest  projectile,  the  most 
frightful  engine  of  wholesale  slaughter,  and  the  shalloAvs  of 
Kertch  and  Cronstadt  are  planted  thick  with  infernal  machines. 
It  is  p'ossible  to  go  too  fast  and  too  far  in  this  direction.”  i 
What  is  liere  quoted  from  an  English  essay  written  a few 
years  since  is  more  true  of  sea  warfare  than  of  land.  As  Heff- 
ter  remarks  (§  119),  w’ar  on  that  element  is  the  more  harsh 
and  destructive.  “ Its  maxims,  owing  to  a want  of  the  proper 
equipoise  between  naval  powers,  have  been  far  from  reaching 
the  same  level  of  humanity  on  which  land-warfare  stands.  It 
is  still  half  a war  of  plunder.”  As  for  war  in  general,  Kliiber 
(§  244)  lays  it  down  that  the  customs  of  w'ar  (“  Kriegsman- 
ier  ”)  condemn  not  only  poisoned  weapons,  poisoning  of  wells 
and  of  utensils,  attempts  to  spread  the  plague  among  the 
enemy,  but  also  the  use  of  chain-shot  and  bar-shot  (bonlets  d 
bras')  shooting  bits  of  iron,  brass,  nails,  etc.  (tirer  d la  mi- 
traille).  The  loading  of  muskets  with  two  balls,  with  jagged 
balls,  or  with  balls  mixed  with  glass  or  lime,  he  also  holds, 
somewhat  too  broadly,  to  be  forbidden.  Special  treaties  have 
prohibited  as  between  the  parties  the  use  of  chain,  bar,  and 
hot  shot,  as  well  as  of  pitch  rings  {cercles  poisses).  An  infer- 
nal machine  invented  about  the  year  1585,  which  was  a kind 
of  fire-ship,  was  disapproved  of  by  some,  but  went  out  of  use 
because  it  did  not  do  its  work  well. 

On  the  whole,  it  may  be  said  that  weapons  whose  efficiency 
consists  simply  in  inflicting  a bad  wound,  and  instruments  of 
wholesale  slaughter  which  cannot  be  foreseen  or  avoided  by 
flight,  are  against  the  customs  of  most  kinds  of  warfare  ; but 
that  naval  warfare  too  much,  and  sieges,  of  necessity,  make 
use  of  summary  and  wholesale  means  of  death.^  Naval  war- 
fare is  the  storming  of  one  floating  fortress  by  another,  but  its 
law's  need  not  be  altogether  assimilated  to  the  storming  of  for- 
tified places  on  the  land. 

1 Jlonntague  Bernard,  u.  s.,  p.  127. 

2 Since  this  was  fir>t  written,  torpedoes  have  been  used  for  coast  and  river  de- 
fense by  the  Prussians  in  the  Franco-Prnssiau  war,  and  by  the  Russians  in  the 
recent  war  with  Turkey.  For  the  convention  regulating  the  size  of  hand-grenades 
that  may  be  used  on  the  field  of  battle,  see  § 142. 


222 


EIGHTS  OF  SELF-DEFENSE 


§ 134. 


Hitherto  the  practice  of  using  barbarians  in  the  wars  of 
Christian  nations  with  one  another,  has  not  been 

Kind  of 

troops  em-  absolutely  Condemned  by  the  law  of  nations.  The 

ployed.  , 

French  used  the  American  Indians  against  the  Eng- 
lish in  America,  and  the  Turcos,  a force  made  up  of  Algerines, 
Kabyles,  and  Negroes,  in  Ital}^  ; the  English  employed  savages 
against  their  revolted  colonies,  in  spite  of  the  rebukes  of  Lord 
Chatham  ; and  the  Russians  brought  Circassians  with  them 
into  Hungary  in  the  war  following  1848.  But  nothing  is 
clearer  than  that  troops  who  are  accustomed  to  an  inhuman 
mode  of  warfare,  and  belong  to  a savage  race,  cannot  be  trusted 
to  wage  war  according  to  the  spirit  of  humanity,  and  ought 
not  to  be  employed. 

Breach  of  faith  between  enemies  has  always  been  strongly 
3.  rrpach  of  Condemned,  and  that  vindication  of  it  is  worthless 
itatlons'to''^  Avhich  maintains  that,  Avithout  an  express  or  tacit 
crime.  promise  to  our  enemy,  Ave  are  not  bound  to  keep  faith 
Avith  him.  But  no  rule  of  Avar  forbids  a commander  to  cir- 
culate false  information,  and  to  use  means  for  deceiving  his 
enemy  Avith  regard  to  his  movements.  If  he  abstains  from 
them,  he  must  do  so  by  the  force  of  his  OAvn  Christian  con- 
science. To  lead  the  officers,  counsellors,  or  troops  of  an  enemy 
to  treachery  by  biibes,  or  to  seduce  his  subjects  to  betray  their 
country,  are  temptations  to  commit  a plain  crime,  Avhich  no 
hostile  relation  Avill  justify.^  Yet  to  accept  of  the  services 
of  a traitor  is  alloAvable.^ 

§ 134. 

A combatant  is  any  person  directly  engaged  in  carrying  on 
Avar,  or  concerned  in  the  belligerent  government,  or  present 
Avith  its  armies  and  assisting  them ; although  those  Avho  are 
present  for  purposes  of  humanity  and  religion  — as  surgeons, 
nurses,  and  chaplains  — are  usually  classed  among  non-com- 

1 A qualification  is  here  necessary,  that  when  a nation  has  been  conquered  and 
is  under  <a  usurper’s  sway,  and  in  similar  cases,  it  cannot  be  wrong  for  those  who 
arc  engaged  in  a war  of  liberation  to  lead  the  people  to  revolt. 

2 Vattel,  iii.,  10,  §§  180,  181. 


134. 


AND  REDRESS  OF  INJURIES,  ETC. 


223 


batants,  unless  special  reasons  require  an  opposite  treatment 
of  them.  The  ancient  rule  -u-as,  that  a combatant  taken  in 
battle  became  the  property  of  his  captor,  who  could  4 Treat- 
kill,  enslave,  or  sell  him.  Ransom  was  a kind  of  sale 
to  those  who  were  most  interested  in  paying  a high  iaSyof  sou 
price.  Among  the  Greeks  the  general  practice  was 
not  to  refuse  quarter  to  a Greek  who  gave  himself  up  on  the 
field  of  battle,  and  to  allows  his  friends  to  redeem  him,  if  they 
would ; the  price  for  Avhich  was  more  or  less  fixed  between  con- 
tending parties.  This  usage  prevailed  also  among  the  Romans, 
as  well  as  that  of  exchanging  prisoners,  but  any  degree  of  in- 
jury to  the  enemy  was  allowed  in  their  jus  belli.  Neither 
law,  nor  the  feelings  of  humanity,  nor  aught  save  considera- 
tions of  prudence,  restrained  them.  After  the  disaster  in  the 
Caudine  Forks,  Avhen  they  gained  their  next  victory  over  the 
Samnites,  they  slew  alike  the  resisting  and  the  unresisting, 
aimed  and  unarmed,  slaves  and  free,  boys  and  adults,  men  and 
cattle,  nor  would  any  living  thing  have  been  left  alive,  unless 
the  consul  had  given  the  signal  for  withdrawing.  (Livy,  ix., 
14.)  By  the  rules  of  both  nations  leading  officers  of  the  hos- 
tile army,  after  bein^  taken,  might  be  put  to  the  sword.  Such 
was  the  case  with  the  Athenian  generals  taken  at  Syracuse, 
(Thucyd.,  vii.,  86,)  — against  the  will,  however,  it  should  be 
added,  of  the  Sjaartan  general  Gylippus,  — and  many  an  illus- 
trious warrior,  taken  captive  by  the  Romans,  had  his  death  de- 
layed, only  to  endure  the  humiliation  of  being  led  in  triumph. 
Similar  cruelty  was  universal  in  ancient  times,  as  among  the 
Jews,  Avhere  David's  campaigns  dealt  death  in  frightful  forms 
upon  surrounding  nations  ; and  yet,  a century  and  a half  after 
David,  a prophet,  to  the  king  of  Israel’s  inquiry,  “ Shall  I smite 
them  ?”  could  answer,  “ Wouldst  thou  smite  those  whom  thou 
hast  taken  captive  with  thy  sword  and  thy  bow  ? ” — showing 
that  a more  humane  mode  of  warfare  was  then  in  vogue. 

War  put  on  all  its  hoiTors  in  the  invasions  of  the  empire  by 
the  Germans.  Then  came  the  times  of  feudalism  and  knight- 
hood, when  many  mitigations  of  the  barbarian  practice  grew 
up.  Captives,  in  wars  between  Christians,  were  ransomed  and 


994. 


EIGHTS  OF  SICFF-DrFKNSE 


§ 134. 


sometimes  released  on  parole  to  raise  the  money  necessary  for 
this  purpose.  But  the  common  soldier  did  not  receive  much 
benefit  from  the  relaxation  of  the  old  severities.  During  the 
wars  just  befoi-e  the  Reformation,  especially  those  of  the  French 
invasions  of  Italy,  the  cruelties  of  war  seemed  to  revive,  and 
the  religious  animosities  of  the  century  and  a half  afterwax’ds 
did  not  extinguish  them.  In  the  Thirty  Years’  War  Gustavos 
Adolphus  made  a convention  with  the  Imperialists  to  give  and 
receive  quarter ; only  the  Croats  on  one  side,  and  the  Pome- 
ranians on  the  other,  were  excepted  from  this  act  of  humanity. 
In  the  wars  of  England  between  the  king  and  the  Parliament 
no  quarter  was  allowed  to  the  Irish,  who  served  in  the  royal 
army,  and  when  Prince  Rupert  retaliated,  he  was  told  that 
there  was  a great  difference  between  an  Irishman  and  an  Eng- 
lishman. In  these  wars  the  exchange  of  prisoners,  practiced 
just  before  in  the  wars  of  Germany,  became  systematic.  Car- 
tels, fixing  the  rate  of  ransom  for  prisoners  exchanged  are  said 
to  have  been  of  somewhat  later  date.  For  the  two  centuries 
past,  cruelty  to  prisoners  and  non-resisting  soldiers  has  been 
exceptional.  The  present  practice  is  to  spare  the  lives  of  those 
who  yield  themselves  up,  to  exchange  them  with  captives  taken 
by  the  other  party,  or  to  give  them  up  on  payment  of  a ran- 
som, and  meanwhile  “to  supply  them  with  the  necessary  com- 
forts at  the  expense  of  the  state  to  which  they  belong.”  It 
were  well  if  such  comforts  were  to  be  found  in  a state  of  cap- 
tivity, but  the  prison-hulks  of  some  civilized  nations,  and  the 
general  neglect  of  the  prisoners,  seem  almost  calculated  to 
make  them  unserviceable  when  exchanged.  Officers  and  others, 
whose  word  can  be  relied  on,  are  often  set  free,  on  their  parole 
not  to  serve  during  the  war  or  until  ransomed.  Persons  es- 
caping from  captivity,  and  retaken,  or  even  recaptured  in  war, 
are  not  held  to  merit  punishment,  for  they  only  obeyed  their 
love  of  liberty  ; but  the  breach  of  parole  justly  subjects  such 
persons  to  heavy  punishment.  (Heffter,  § 129.)  Deserters,  if 
captured,  acquire  no  rights  from  joining  the  other  belligerent, 
and  may  be  put  to  death.  The  pr'operty  belonging  to  combat- 
ants, or  taken  on  the  field  of  battle,  has  been  considered  to  be 


§ 135. 


AND  KEDRESS  OF  INJURIES,  ETC. 


225 


lawful  plunder,  and  usually  goes  to  the  victorious  officers  and 
troops  (such  of  it  as  is  not  stolen),  as  a reward  of  successful 
bravery. 

Tlie  treatment  which  the  milder  modern  usage  prescribes 
for  regular  soldiers  is  extended  also  to  militia  called 

1 ^ 1 T 1 • /-(  -n  • 1 5.  Treatment 

out  by  public  authority,  (jriierilla  parties,  however,  of  mcguiar 
do  not  enjoy  the  full  benefit  of  the  laws  of  war.  They 
are  apt  to  fare  worse  than  either  regular  troops  or  an  unarmed 
peasantry.  The  reasons  for  this  are,  that  they  are  annoying 
and  insidious,  that  they  put  on  and  off  with  ease  the  character 
of  a soldier,  and  that  they  are  prone,  themselves,  to  treat  their 
enemies  who  fall  into  their  hands  with  great  severity. 

§ 135. 

It  is  in  regard  to  non-combatants  and  their  property  that 
the  mildness  of  modern  warfare  appears  in  most  q Non-com- 
striking  contrast  with  the  severity  of  ancient.  The  theh”^-op-‘* 
old  rule  was  to  regard  every  human  being  pertaining 
to  the  enemy's  country  as  a foe,  to  lay  waste  territory,  kill  or 
take  captive  those  who  could  serve  in  the  enemy's  armies,  en- 
slave women  and  children,  and  carry  off  all  the  property  of 
value  which  could  be  transported.  Wars  to  a considerable  ex- 
tent were  ravaging  forays  into  a hostile  country,  and  the  more 
harm  was  done,  the  sooner,  it  was  thought,  redress  could  be 
procured.  War  thus,  especially  at  Rome,  fed  the  u.'^agesof 
public  treasury,  supplied  the  market  with  slaves,  and 
laid  the  foundation  of  the  wealth  of  noble  families.  The 
manfjo  or  slave-dealer  accompanied  the  armies,  and  forwarded 
the  captives,  purchased  by  him  at  wholesale,  to  the  city  market. 
If  a territory  was  conquered,  the  former  inhabitants  were  often 
stripped  of  a part  of  their  lands,  and  we  find  one  third  confis- 
cated by  the  Romans  on  a number  of  occasions  ; or  they  were 
removed  in  mass,  as  Avas  common  in  the  East,  into  another 
country.  When  the  Germans  conquered  the  empire,  the  hor- 
rors of  Avar  for  the  inhabitants  Avere  not  as  great  as  those  Avhich 
the  Romans  in  their  best  days  inflicted  on  the  conquered,  for 
the  provinces  yielded  with  slight  struggles,  and  the  possessors 
15 


226 


EIGHTS  OF  SELF-DEFENSE 


§ 135. 


of  the  soil  were  generally  allowed  to  retain  a part,  from  one  to 
two  thirds,  of  tlieir  lands. 

In  the  iMiddle  Ages  the  treatment  Avhich  Christians  received 
Of  the  Mia-  fi'om  Christians  during  invasions  Avas  somewhat  het- 
die  Ages.  although  between  them  and  INIohammedans  the 

law  of  the  SAVord  prevailed.  Still,  although  AAmmen,  children, 
and  ecclesiastical  persons  Avere  mercifully  used,  every  able-bod- 
ied peasant  Avas  accounted  an  enemy ; armies  Avere  quartered 
on  an  invaded  district ; and  pillage,  as  Avell  as  devastation,  AA^as 
the  rule.  In  134G,  the  English,  under  EdAvard  III.,  marched 
through  Normandy,  burning  and  raA'aging;  but  though  they 
collected  a Amst  booty,  the  army  at  Crccy  AAms  very  soon  after- 
Avards  in  severe  Avant.  Nearly  seventy  years  after  this,  Avhen 
Henry  V.  invaded  France,  a truer  policy  prevailed,  the  army 
AA'as  accompanied  by  stores,  bread  and  Avine  only  being  exacted 
from  the  peasants,  even  Avhen  offering  resistance  ; and  orders  to 
the  troops  forbade  injuries  to  property  and  insults  to  AAmmen. 
At  the  end  of  this  centairy  the  invasions  of  Italy  by  the  French 
under  Charles  VIII.  and  Louis  XII.  AA'erc  characterized  by  a 
return  to  greater  barbarity.  The  invaders  lived  on  the  re- 
sources of  the  counti-y,  and  the  spirit  of  plunder  aaxis  insatiable. 

The  same  spirit  AV'as  seen  in  that  terrible  scourge  of  Ger- 
of  the  Thirty  n^any,  the  Thirty  Years’  War.  Count  IMansfeld’s 
Years  \\  ar.  j^^axim  Avas  that  Avar  slaonld  sujaport  itself,  Avhile 
Christian  of  Ilalberstadt,  of  the  Protestant  party,  like  j\Ians- 
feld,  Avas  no  better  than  a robber  and  incendiary.  On  the  side 
of  the  Im^Jerialists,  Wallenstein  did  arot  curb  tlic  rapacity  of 
his  troops,  Avho  plundered  on  every  hand  for  food,  and  Tilly’s 
armies  Avere  Avorse  governed.  Nor  did  the  French  under  Gue- 
briant  behave  much  better.  But  hoAV  could  armies  be  kept 
from  plunder  and  biHitality,  Avhich,  being  unpaid,  liAmd  by  req- 
uisitions, made  food  and  Avinter-quartei’S  the  object  of  their 
campaigns,  and  Avere  a colluvies  of  all  nations,  Avithout  good 
officers  or  a sense  of  professional  honor.  Gustavus  Adolphus 
paid  and  disciplined  his  troops,  but  the  generals  of  the  SAvedes 
after  his  death  alloAved  greater  license  to  their  forces ; thus 
Baner,  after  the  victory  of  Wistock,  laid  Saxony  and  Bohe- 
mia waste. 


§ 135. 


AND  EEDRESS  OF  INJURIES,  ETC. 


227 


In  tlie  earlier  wars  of  Louis  XIV.  tlie  treatment  of  non-com- 
batants and  their  property  was  no  better,  — in  some 
respects  was  even  Avorse.  Turenne  laid  rvaste  large 
tracts  of  country  to  deprive  the  enemy  of  the  means 
of  subsistence.  The  crimes  of  the  armies  under  Catinat,  Feu- 
quieres,  and  INIelas,  the  terrible  ravages  of  the  Palatinate,  Avere 
sanctioned  by  orders  from  Paris.  But  in  the  War  of  the  Suc- 
cession Marlborough  and  Villars  introduced  something  like  hu- 
manity into  the  conduct  of  their  armies.  By  an  understanding 
betAveen  the  commanders,  each  belligerent  levied  contributions 
on  the  district  occupied  by  his  troops,  Avhich  Avere  not  to  ex- 
ceed a certain  amount,  determined  by  commissioners  of  the 
tAvo  hostile  parties.  If  the  local  authorities  thought  that  too 
large  a sum  had  been  demanded,  “ they  sent  in  complaints  to 
the  headquarters  of  the  friendly  army,  Avhich  Avere  attended  to 
hnmediately.”  Villars  declares  his  satisfaction  at  having  fed 
an  army  of  tAvo  hundred  battalions,  and  of  more  than  three 
hundred  squadrons  of  caA^alry  for  three  months  on  a space  near 
the  Rhine  of  a hundred  square  leagues  Avithout  forcing  a pea- 
sant to  quit  his  dAvelling. 

“ The  Prussians  and  Austrians  in  the  time  of  Frederick  the 
Great  contented  themseh^es  with  leA^ying  contribu-  of  Frederick 
tions  Avhere  they  moved,  and,  speaking  generally,  the 
habit  of  depending  for  subsistence  on  magazines,  and  on  the 
cumbrous  provision-trains  Avhich  folloAved  armies  on  their 
march,  is  noted  by  Jomini,  as  a characteristic  of  the  eight- 
eenth century.”  In  the  AA^ar  of  our  ReA'olution  the  British  gov- 
ernment declai’ed  it  to  be  a right  in  Avar  (1)  to  demand  pro- 
visions and  raise  contributions,  Avhich  might  be  en- 
forced,  if  necessary,  by  the  SAVord  ; (2)  to  ravage  a the’An'Jer“ 
territory  AAdiere  you  have  no  other  Avay  of  bringing 
an  enemy  to  an  engagement  or  to  terms ; (3)  to  treat  rebels  as 
enemies.  The  right  to  ravage  has  not  been  asserted  or  acted 
upon  since,  unless  in  a feAv  cases,  Avhicli  Avere  pretended  to  be 
extreme.  In  the  last  Avar  betAveen  Great  Britain  and  our 
country,  nothing  Avas  taken  from  priA^ate  persons  Avithout  be- 
ing paid  for,  and  the  same  may  be  said,  we  believe,  of  our  Avar 
Avith  Mexico. 


228 


RIGHTS  OF  SELF-DEFENSE 


§ 135. 


The  wars  of  Napoleon  were  marked  by  the  enormous  requi- 
sitions Avhich  Avere  levied  upon  inA^aded  countries, 

Of  Napoleon.  . ^ 

producing  amounts  nearly  lai’ge  enough  to  save  the 
necessity  of  increased  taxes  upon  France  itself.  The  rule 
Avith  Bonaparte  Avas  to  make  the  Avar  pay  for  the  war.  Thus, 
after  the  battle  of  Jena,  in  1806,  the  requisition  upon  humbled 
Prussia  AA^as  more  than  a hundred  millions  of  francs  : half  that 
sum  Avas  imposed  on  the  province  of  Valencia,  after  Suchet’s 
conquest  of  it  in  1812,  and  the  conquering  army  Avas  to  have 
a donative  of  tAVO  hundred  millions  besides,  to  be  collected 
chiefly  from  the  same  quarter  of  Spain. 

During  his  Peninsular  Avars,  Wellington  was  among  friends, 
— Avhere  all  codes  require  private  property  to  be  respected,  — 
until  he  entered  France  in  1813,  and  there  policy,  if  nothing 
else,  demanded  the  observance  of  the  same  rule.  But  he 
seems  to  have  regarded  requisitions  as  iniquitous,  and  Avhen 
the  ministry  at  home  proposed  that  he  shovild  adopt  them,  he 
opposed  the  system,  as  needing  terror  and  the  bayonet  to  carry 
it  out,  — as  one  for  Avhich  the  British  soldier  Avas  unfit,  and  as 
likely  to  injure  those  Avho  resorted  to  it.^  The  right  to  levy 
contributions  Avas  again  enforced  by  the  Prussians  in  the  war 
of  1848  with  Denmark,  but  it  slumbered,  Ave  believe,  in  the 
Crimean  Avar  of  the  allies  against  Russia. 

§136. 

To  sum  up  all  that  has  been  said  on  this  topic,  Ave  may  lay 
Summing  doAvii  the  folloAving  rules  of  Avar  : — 

«P-  1.  Private  persons  remaining  quiet,  and  taking  no 

part  in  the  conflict,  are  to  be  unmolested,  but  if  the  people  of 
an  iiiAuided  district  take  an  active  part  in  the  Avar,  they  forfeit 
their  claim  to  protection.  This  marked  line  of  separation  be- 
tAveen  the  soldier  and  the  non-soldier,  is  of  extreme  importance 
for  the  interests  of  humanity. 

2.  The  property,  movable  as  Avell  as  immovable,  of  pri- 
vate persons  in  an  invaded  country,  is  to  remain  uninjured. 
If  the  Avants  of  the  hostile  army  require,  it  may  be  taken  by 
1 Napier,  u.  s.,  iv.,  21. 


§ 136. 


AND  REDRESS  OF  INJURIES,  ETC. 


229 


authorized  persons  at  a fair  value ; but  marauding  must  be 
checked  by  discipline  and  penalties. 

3.  Contributions  or  requisitions  are  still  permissible,  on  the 
plea,  first,  that  they  are  a compensation  for  pillage,  or  an  equita- 
ble repartition  of  what  would  accrue  from  this  source,  — which, 
if  pillage  is  wrong,  is  no  plea  at  all ; — and  again  that  they  are 
needed  for  defraying  the  expenses  of  governing  a conquered 
province,  which  is  a valid  plea  when  conquest  has  been  effected, 
but  not  before  ; and  thirdly,  on  the  plea  that  in  a just  war  it  is 
right  to  make  the  “ enemy’s  country  contribute  to  the  support 
of  the  army,  and  towards  defraying  all  the  charges  of  the  war.”  i 
But  if  the  true  principle  is  that  war  is  a public  contest,  waged 
between  the  powers  or  authorities  of  two  countries,  tlie  passive 
individual  ought  not  to  suffer  more  than  the  necessities  of  war 
require.  Vattel  adds,  “ that  a general  who  would  not  sully  his 
reputation,  is  to  moderate  his  contributions.  An  excess  in  this 
point  is  not  without  the  reproach  of  cruelty  and  inhumanity.” 
But  many  generals  will  go  to  the  extreme  of  what  they  think 
can  be  exacted,  without  regard  to  their  reputation  ; and  cruelty 
and  inhumanity  are  as  unavoidable  in  such  transactions,  as 
they  would  be  if  sheriffs  and  their  men  were  to  levy  on  goods 
by  force  of  arms,  and  pay  themselves  out  of  the  things  seized. 
Moreover,  requisitions  are  demoralizing,  and  defeat  their  own 
ends.  They  foster  the  lust  of  conquest,  they  arouse  the  ava- 
rice of  officers,  they  leave  a sting  in  the  memories  of  oppressed 
nations ; who,  when  iniquity  is  full,  league  together  to  destroy 
the  great  plunderers  of  mankind.  The  only  true  and  humane 
principle  is  that  already  laid  down,  that  war  is  waged  by  state 
against  state,  by  soldier  against  soldier.^  The  state  resists  an 

1 Vattel,  iii.,  9,  § 165. 

2 We  cannot  forbear  inserting,  as  bearing  on  this  point,  an  opinion  of  Portalis, 
in  liis  speech  at  the  installation  of  the  council  of  prizes,  which  we  bori  ow  from 
Heffter,  § 119.  “The  right  of  war  is  founded  on  this,  that  a people,  in  the  in- 
terests of  self-conservation,  or  for  the  sake  of  self-defense,  will,  can,  or  ought  to 
use  force  against  another  people.  It  is  the  relation  of  things,  and  not  of  persons, 
which  constitutes  war ; it  is  the  relation  of  state  to  state,  and  not  of  individual  to 
individual.  Between  two  or  more  belligerent  nations,  the  private  persons  of  which 
these  nations  con.sist  are  enemies  only  by  accident ; they  are  not  such  as  men,  they 
are  not  even  as  citizcn.s,  they  arc  such  merely  as  soldiers.” 

To  the  same  effect  arc  Talleyrand's  words  in  a despatch  to  Napoleon,  of  No- 


230 


EIGHTS  OF  SELF-DEFENSE 


§ 136, 


effort  to  obtain  justice ; the  soldier  obstructs  the  way  of  the 
armed  officer  of  justice,  and  must  be  resisted. 

4.  Extraordinary  cases,  as  retaliation  (§  132),  and  perhaps, 
in  fig'hting  with  barbarians  or  semi-barbarians,  who  acknowl- 
edge no  rides  of  war,  the  necessity  of  reading  them  a severe 
lesson  (comp.  § 142),  will  justify  a departure  from  these  prin- 
ciples. But  pillage  and  devastation  are  seldom  politic,  even 
when  they  are  supposed  to  be  just. 

§137. 

The  older  practice  made  little  distinction  between  public 
7.  Public  private  property,  little  between  public  property 

property.  different  kinds.  That  which  had  the  least  rela- 
tion to  military  affairs,  as  libraries,  works  of  art,  public  build- 
ings for  peaceful  purposes,  might  be  plundered  or  destroyed. 
For  nearly  two  centuries  the  Palatine  manuscripts,  which  were 
taken  from  Heidelberg  in  the  Thirty  Years’  War,  remained 
at  Rome,  and  Napoleon  transported  pictures  to  the  Louvre 
from  every  quarter  where  his  arms  penetrated. 

The  treasures  of  the  Palatine  library,  or  rather  a part 
of  them,  wei’e  restored  after  the  peace  of  1815.  When  the 
allies  entered  Paris  after  the  battle  of  Waterloo,  they  recov- 
ered the  works  of  art  which  the  emperor  had  robbed  them 

vember  20,  1806:  “Three  centuries  of  civilization  liave  given  Europe  a law  of 
nations,  for  whicli,  according  to  the  expression  of  an  illustrious  writer,  huinaii 
nature  cannot  be  sufficiently  grateful.  This  law  is  founded  on  the  principle,  that 
nations  ought  to  do  to  one  another  in  peace,  the  most  good,  and  in  war,  the  least 
evil  possible. 

“According  to  the  maxim  that  war  is  not  a relation  between  a man  and  an- 
other, but  between  state  and  state,  in  which  private,  persons  are  only  accidental 
enemies,  not  such  as  men,  nor  even  as  members  or  subjects  of  the  state,  btit  sim- 
ply as  its  defenders,  the  law  of  nations  does  not  allow  that  the  rights  of  war,  and 
of  conqttest  thence  derived,  should  be  applied  to  peaceable,  unarmed  citizens,  to 
jtrivate  dwellings  and  properties,  to  the  merchandise  of  commerce,  to  the  maga- 
zines which  contain  it,  to  the  vehicles  which  transport  it,  to  unarmed  ships  which 
convey  it  on  streams  and  seas ; in  one  word,  to  the  person  and  the  goods  of  private 
individuals. 

“ This  law  of  war,  born  of  civilization,  has  favored  its  progress.  It  is  to  this 
that  Europe  must  ascribe  the  maintenance  and  increase  of  her  prosperity,  even  in 
the  mid.st  of  the  frequent  wars  which  have  divided  her.” 


§ 138. 


AND  EEDEESS  OF  INJUEIES,  ETC. 


231 


of.  At  the  same  time  a requisition  was  made  on  Paris  of  a 
hundred  millions  of  francs,  which  was  afterAvards  greatly  re- 
duced in  amount.  Great  complaint  has  been  made  against 
these  measures  by  Frenchmen  of  all  political  shades ; against 
the  latter  as  extortionate  and  oppresswe,  and  the  other  as  a 
shameful  abuse  of  victory.  But  the  requisition  was  not  be- 
yond the  means  of  the  capital,  nor  unauthorized  by  the  prac- 
tice of  the  French  themselves,  and  the  recovery  of  the  works 
of  art  was  an  act  of  simple  justice,  not  precluded  by  previous 
treaty.^ 

The  rule  is  now  pretty  well  established,  that  while  all  mili- 
tary stores  and  buildings  are  lawful  plunder,  and  while  every 
edifice  in  the  AA'ay  of  military  movements,  — whether,  indeed, 
public  or  private,  — niay  be  destroyed,  whatever  does  not  con- 
tribute to  the  uses  of  war,  ought  to  remain  intact.  It  was 
a blot  to  the  British  character,  when  they  burned  the  capitol 
at  Washington,  and  the  excuse  for  it,  on  the  ground  of  retal- 
iation, although  insufficient,  showed  the  necessity  for  an  ex- 
cuse to  the  civilized  Avorld.  Even  militai’y  hospitals  are  spared, 
if  not  misused  for  a hostile  purpose. 

§138. 

Among  the  ancients,  the  license  of  war  in  successful  sieges 
and  storms  was  unlimited.  The  butchery  of  the  3 
Platteans,  the  intended  but  revoked  cruelty  of  the  of'lo'^rtTTnd 
Athenian  people  towards  Mitylene,  their  treatment 
of  the  Melians,  the  sack  of  Thebes  by  Alexander,  and  many 
similar  events,  shoAV,  that  on  such  occasions,  rapine,  wholesale 
slaughter,  and  enslavement,  whether  of  garrisoning  troops,  or 
of  citizens,  wete  dependent  on  the  conqueror’s  will.  So,  too, 
the  sack  of  Syracuse,  although  captured  without  a storm,  that 

^ V,  hat  is  here  said  of  the  requisition  on  Paris  refers  to  Bliicher’s  demands, 
rvliicli  Were  reduced  Iw  tlie  King  of  Prussia  and  tlie  Emperor  of  Eus^ia.  (Com)). 
Von  Eoclian,  Gesch.  FrarJcreichs  von  1814  bis  1852,  i.,  58.)  At  the  same  time  the 
allies  made  requisitions  for  the  support  of  the  invading  army  on  the  provinces 
where  they  were  quartered.  After  a little  time  an  arrangement  was  made  to  use 
the  iiit'-rvi  nti  in  of  c rttiiii  specified  authorities  in  feeding,  clothing,  equipping,  and 
jiaying  the  foreign  troops. 


232 


RIGHTS  OF  SELF-DEFENSE 


§ 138. 

of  Carthage,  that  of  Corinth,  and  of  other  towns  by  the  Ro- 
mans, repeated  the  same  scenes.  The  sieges  of  Europe,  down 
to  modern  times,  were  terminated  in  a manner  not  less  dis- 
graceful to  the  general  and  the  soldier.  Thus,  Rome  suffered 
as  much  when  taken  by  the  generals  of  the  Emperor  Charles 
V.,  as  in  any  siege  it  ever  sustained.  “ When  Henry  II.  of 
France  entered  the  Low  Countries,  every  city,  which  did  not 
surrender  before  he  opened  fire,  Avas  given  up  to  destruction, 
the  garrison  hung,  the  inhabitants  put  to  the  sword.”  The 
fate  of  jMagdeburg,  in  the  Thirty  Years’  War  (in  1631),  is 
perliaps  the  most  dreadful  act  in  that  gloomy  drama,  and 
naturally  provoked  the  retaliation  of  the  Protestants,  Avhen 
Wurtzburg  AAais  captured.  If  CromAvell  put  the  garrisons  of 
Tredah  and  Wexford  to  the  sword,  after  the  storming  of  those 
cities,  it  was  a cruel  policy,  but  AA'as  less  than  the  practice  of 
Avar  at  that  time  permitted. 

j\fore  modern  usage  in  sieges  and  storms,  though  in  some 
respects  very  harsh,  shows  an  advance  in  humanity.  There 
is  a distinction  to  be  made  between  forts  and  fortified  toivns. 
Any  means  of  assailing  a fort  may  be  used  Avhich  are  likely 
to  be  successful,  but  many  generals  abstain  from  bombarding 
a garrisoned  town,  and  resort  to  storming  in  order  to  save  the 
inhabitants  ; or  if  the  nature  of  the  place,  or  anything  else, 
renders  bombardment  necessary,  they  give  notice  to  the  in- 
habitants, that  they  may  retire  to  a place  of  safety.^  It  Avas 
a proceeding  Avorthy  only  of  barbarians,  Avhen  Suchet  drove 
the  people  of  Lerida,  in  Catalonia,  into  the  citadel,  then 
threAV  shells  among  the  unprotected  multitude,  and  compelled 
the  governor  to  capitulate  by  such  an  appeal  to  his  humanity. 
Formerly,  it  Avas  regarded  somewhat  in  the  light  of  a crime, 
if  a commander  of  a fortress  held  out  as  long  as  he  could,  and 
instances  may  be  adduced  Avhere  such  officers  Avere  put  to 
death  for  their  obstinacy.  In  1794  the  French  convention 


1 In  1S70,  the  hoinbiirilment  of  Paris  was  Iteguii  without  any  official  warning 
by  tlie  Prii.ssian  army.  On  being  remonstrated  with  by  most  of  the  foreign  dip- 
lomatic officers  left  in  the  city,  Bismarck  answered  that  lie  was  not  aware  of  the 
necessity  of  giving  any  notice.  — T.  S. 


§ 139. 


AND  REDRESS  OF  INJURIES,  ETC. 


233 


voted,  that  if  a garrison  did  not  surrender  within  twenty-four 
hours  after  the  demand  was  made,  it  should  be  put  to  the 
sword.  Now,  in  ordinary  cases,  surrendering  at  discretion 
only  reduces  the  soldiers  to  the  state  of  prisoners  of  war.  A 
commander  who  should  blow  up  the  works  of  his  fortress,  and 
break  through  a blockading  army,  would,  according  to  the 
opinion  of  some,  be  doing  an  act  contrary  to  the  laws  of  war ; 
but  this  does  not  appear  to  be  true,  although  the  blockader 
might  be  justified  in  refusing  quarter  to  those,  or  at  least  to 
those  officers  who  should  seek  thus  to  deprive  them  of  the 
fruit  of  their  toils. ^ 

When  a fortified  town  has  been  stormed,  the  prevailing 
usage  of  modern,  as  of  ancient  warfare,  is,  to  let  the  soldiers 
have  full  license.  The  frightful  scenes  at  the  storms  of  Ciu- 
dad Rodrigo,  Badajos,  and  St.  Sebastian,  under  so  humane  a 
general  as  Wellington,  show  that  it  is  thought  impossible  at 
such  times  to  curb  the  ferocity  of  soldiers.  Wellington  him- 
self was  of  this  opinion  ; but  says  Napier,^  “ let  the  plunder 
of  a town  after  an  assault  be  expressly  made  criminal  by  the 
laws  of  war,  with  a due  punishment  cattached ; — let  a select, 
permanent  body  of  men,  receiving  higher  pay,  form  a part 
of  the  army,  and  be  charged  to  follow  storming  columns,  with 
power  to  inflict,”  even  death,  if  necessary ; let  money,  in  pro- 
portion to  the  importance  and  delay  of  the  services,  be  paid  to 
the  successful  troops,  and,  “with  such  regulations,  the  storm- 
ing of  towns  would  not  produce  more  military  disorders  than 
the  gaining  of  battles  in  the  field.” 

§ 139. 

The  liability  of  private  property  to  capture  on  the  sea,  we 
have  already  considered,  and  the  regulations  of  cap-  ^aws  of  war 
ture  we  shall  reserve  for  a separate  section.  It  has, 
moreover,  already  appeared,  that  the  usages  of  naval  warfare 
are  more  like  those  allowed  in  attacks  on  forts,  than  like  those 
which  control  ordinary  land  operations  ; and  that  even  sub- 
mai’ine  instruments  of  death,  exceptionable  as  they  aiv,  are  not  - 

* ('‘Jill]',  Nil  i,  r,  II.  s.,  iv  , 252.  * Ib'd.,  iv  . i' Hi. 


234 


RIGHTS  OF  SELF-DEFENSE 


§ 139. 


yet  discarded.  A word  remains  to  be  said  in  regard  to  the 
treatment  of  seaports  and  coasts  by  vessels  of  the  enemy. 
For  a long  time  it  was  hvAvful  to  descend  upon  coasts,  bombard 
towns,  levy  contributions,  and  burn  places  Avhich  refused  to 
pay  them.^  Even  in  1813,  the  British  admiral,  Cochrane,  had 
orders  to  destroy  property  on  the  American  coast,  but  the  in- 
jury done  to  Newark,  in  Canada,  by  our  forces,  was  given  as 
the  reason.  More  recent  operations  have  shown  a milder 
spirit.  Odessa  was  not  attacked  in  the  Russian  war  of  1 853- 
1855,  as  being  merely  a commercial  port.  On  the  Avliole, 
there  are  signs  that  ravages  by  forces  on  both  elements  and 
requisitions  on  the  ground  of  exemptions  from  them  are  groAV- 
ing  obsolete. 

§ 140. 

Communications  betAveen  enemies  in  Avar  have  long  been 
Commercia  Carried  Oil  by  heralds,  persons  bearing  flags  of  truce, 
cartels  for  the  exchange  of  prisoners  and  other  pur- 
poses, etc.  A belligerent  may  decline  to  receive  a flag  of  truce, 
or  to  hold  any  intercourse  Avith  the  enemy,  or  may  even  fire 
upon  those  who  persist  in  attempting  to  open  such  intercourse 
after  being  Avarned  off,  but  the  bitterness  of  Avar  rarely  reaches 
this  point. 

Contracts  laAvful  during  Avar,  as  safeguards  and  passports, 
licenses  to  trade,  armistices,  ransom  contracts,  contracts  to  pay 
requisitions  and  the  like,  Avill  be  considered  elsewhere,  as  far 
as  may  be  necessary.  (Comp.  §§  150,  154,  155.) 

§ 111- 

A general  rule  of  war  alloAvs  the  punishment  of  death  to  be 
inflicted  upon  spies  Avho  are  found  in  disguise  Avithin 
the  lines  of  an  army.  The  case  of  Major  Andre, 
painful  as  it  Avas,  was  strictly  Avithin  military  usage.  But 
military  spies  in  their  regimentals,  Avhen  taken,  are  treated  as 
ordinary  prisoners  of  Avar. 

1 The  German  word  hranrhchatz,  literally  denoting  an  estimate  of  the  burning, 
or  an  equivalent  to  the  burning  of  a dwelling  or  town,  and  applicable  to  tlic  opera- 
lions  of  both  military  and  naval  war,  contains  in  itself  the  history  of  whole  ages 
of  barbarity. 


§ 142. 


AND  EEDEESS  OF  INJUEIES,  ETC. 


235 


§ 142. 

A noticeable  characteristic  of  tlie  most  recent  age  is  the 
attempt  to  introduce  greater  humanity  into  the  rules  Recent  at- 
and  practice  of  ■war,  by  conventions  in  which  a large  ‘cany  Hie 
number  of  nations  have  taken  part.  The  declaration  '^"i«sofwar. 
of  Paris  of  1856,  gave  the  first  impulse  towards  such  concerted 
action.  A new  impulse  came  from  the  Christian  and  sanitary 
commissions  of  the  United  States,  Avhich  sent  forth  great  num- 
bers of  self-sacrificing  persons  to  the  relief  of  the  wounded  on 
battle-fields  and  in  hospitals.  The  rules  of  war  also,  prepared 
by  Dr.  Lieber,  at  the  instance  of  the  government  in  1868,  not 
only  put  into  a permanent  shape  the  Iiumanity  of  the  land,  but 
apparently  excited  efforts  on  a larger  scale  in  Europe. 

The  first  of  these  movements  in  Europe  appears  at  the  Con- 
vention of  Geneva  6 August  22, 1864)  in  which  twelve 
states  took  part  at  first,  but  were  afterwards  joined  at^oeneva, 
by  eleven  others.  It  related  to  military  persons 
wounded  in  battle,  and  to  ambulances.  Other  articles  were 
added  four  years  afteiuvards  (October  20,  1868,  at  Geneva), 
part  of  which  related  to  wounded  and  shipwrecked  marines. 
The  purpose  in  these  articles  was  to  give  the  greatest  security 
and  neutrality  to  the  persons  engaged  in  these  humane  works, 
to  prevent  the  abuse  of  their  neutral  situation,  and  to  allow  to 
the  laws  of  war  their  full  force  throughout.  The  persons  thus 
humanely  employed,  as  well  as  the  hospitals,  ambulances,  and 
ships,  were  to  be  distinguished  by  especial  insignia.  A vessel 
converted  into  a hospital  might  be  captured,  but  was  not  even 
then  to  be  diverted  from  its  special  purpose. 

The  second  of  these  conventions  was  concluded  at  St.  Peters- 
burg, December  11,  1868,  between  delegates  from 

i ; 1 1 P 1 Convention 

seventeen  states,  among  whose  names  those  of  the  atst. ivters- 

• • i e TV  • 1 rri  1 T • burg,  18138. 

ministers  of  Persia  and  lurkey  appear.  It  spent  it- 
self in  the  engagement,  “ as  between  the  parties  in  their  wars 
with  one  another, — but  not  in  wars  with  other  powers,  or  in 
wliicli  such  other  jiowers  liad  a share,  — to  renounce  the  em- 
ployment of  any  projectile,  on  the  land  or  the  sea,  of  a weight 


236 


RIGHTS  OF  SELF-DEFENSE 


§ 142. 


beloTV  four  hundred  grammes,  which  should  be  explosible  or 
loaded  Avith  fulminating  or  inflammable  materials.”  ^ 

Far  higher  in  its  aims  was  the  conference  of  Brussels,  which 
met  July  27,  1874,  at  the  invitation  of  the  Emperor 

Conference  ~ i i • • c ^ 

nt  Brussels,  of  Russia,  Avlio  made  Ins  own  the  suggestions  for  such 

1874.  . . . 

a conference,  ivhich  originated  ivith  the  society  at 
Paris  for  the  amelioration  of  the  condition  of  prisoners  of  war. 
All  tlie  European  states  of  any  importance  were  there  rep- 
resented, but  by  an  unequal  number  of  delegates.  They 
amounted  in  all  to  thirty-two.  Great  Britain  sent  only  one, 
and  he  received  orders  to  oppose  all  debate  on  the  laws  of 
maritime  warfare,  and  to  take  no  part  in  any  discussion,  which 
should  seem  to  him  to  bear  on  principles  of  international  law 
not  already  generally  accepted.^ 

At  the  opening  of  the  conference  a project  of  rules  of  war 
emanating  from  the  Russian  government  ivas  submitted,  which, 
indeed,  had  already  been  sent  to  the  governments  of  the  other 
European  states.  The  plan  ivas  that  on  this  basis  the  ivhole 
subject  should  be  freely  debated  by  the  conference,  and  that 
afterwards  a new  project,  on  ivhich  all  should  be  of  one  mind, 
would  be  submitted,  or  another  conference  be  convened  for 
the  purpose  of  bringing  divergent  vieAvs  into  harmony,  and 
embodying  the  opinion  of  Europe  in  a formal  and  definitive 
act  or  declaration. 

The  “ international  declaration,”  or  code,  as  it  was  modified 
by  tlie  delegates,  differed  from  the  Russian  project  by  omitting 

* See  tlie  text  of  these  conventions  in  the  N'ouv.  Rec.  Gen.,  xviii.  (or  Samwer 
and  Hopf,  Rec  Gen.,  v.),  607-629,  and  450-476. 

2 Prince  Gortcliakoff,  in  a despatcli  of  April  17,  stated  that  the  project  submit- 
ted for  examination  by  the  cabinets,  ‘ ii'est  q’nn  point  de  depart  pour  les  delib- 
erations nltc'rieures,  qui,  nous  aimerons  a I’espe'rer,  prepareront  le  terrain  d’line 
entente  geue'rale.”  After  tliis  the  British  povernment  sent  a circular  despatch  to 
the  governments  of  all  the  powers  invited  to  take  a part  in  the  conference,  in 
which  it  is  said  that  her  Majesty’s  government  must  request  assurances,  etc.,  from 
each  of  tliese  governments  that  “ their  delegates  at  the  conferenee  sliall  he  in- 
structed to  confine  themselves  to  the  consideration  of  details  of  military  opera- 
tions, of  the  nature  of  those  dealt  with  in  the  project  of  the  Russian  government, 
and  shall  not  entertain,  in  any  shape,  directly  or  Indirectly,  any  thing  relating  to 
r-a  I (1  nr  nav.al  warfare.”  (See  Foreign  Relations  of  the.  United 

I ■■  / ■■  i37..  p .'..,,7  ) 


§ 142. 


AND  REDRESS  OF  INJURIES,  ETC. 


237 


the  “ general  principles,”  at  the  beginning,  and  the  articles  on 
reprisals  at  the  end,  and  by  a great  number  of  other  modifica- 
tions. The  very  first  “ principle,”  in  giving  the  definition  that 
“ an  international  war  is  a state  of  open  strife  between  two 
independent  states,”  leaves  the  parties  in  a civil  war  wholly 
unprotected,  although  such  wars  need  to  be  softened  in  their 
rigor  more  than  others.  The  articles  relating  to  belligerents 
and  non-belligerents,  to  the  means  of  injuring  the  enemy,  to 
sieges  and  bombardments,  to  spies,  to  prisoners  of  Avar,  modes 
of  communication  and  armistice,  differ  little  from  those  Avhich 
Avere  already  generally  received,  and  have  been  expounded  in 
this  treatise ; only  they  breathe,  if  anything,  a higher  spirit 
of  humanity  than  the  ordinary  rules  of  Avar.  Thus  Ave  find  in 
Art.  18,  the  lule  that  a toAvn  taken  by  assault  ought  not  to  be 
given  up  to  be  pillaged  by  the  victorious  troops,  and  the  threat 
of  giving  no  quarter  (Art.  13,  B)  is  forbidden.  By  Art.  10, 
the  people  of  a territory  as  yet  unoccupied,  Avhich  takes  arras 
against  an  invader  Avithout  having  time  to  organize  [under 
leaders  and  Avith  a uniform],  shall  be  considered  as  belliger- 
ent, if  they  respect  the  laAvs  and  customs  of  war.  Art.  15 
declares  that  toAvns,  collections  of  dAvellings,  or  open  villages, 
Avhich  are  not  defended,  cannot  be  attacked  or  bombarded. 
Private  property  cannot  be  confiscated  (Art.  38),  and  pillage 
is  formally  interdicted. 

There  Avere,  hoAvever,  a number  of  rules  AAhich  Avere  not  ac- 
ceptable to  Great  Britain  and  to  several  of  the  smaller  states. 
In  a despatch  to  the  British  ambassador  at  St.  Petersburg, 
Lord  Derby  objects  Avith  energy  to  any  project  modifying  the 
principles  of  international  laAV  Avhich  his  country  had  observed 
until  that  time  ; and  above  all  refuses,  in  the  name  of  Great 
Britain,  to  enter  into  an  arrangement,  the  effect  of  Avhich  Avould 
be  to  facilitate  aggressive  Avars,  and  to  paralyze  the  patriotic 
resistance  of  an  invaded  people. 

The  principal  complaints  against  the  declaration  Avere  the 
folloAving : first,  that  against  the  definition  of  occupation  in  the 
amended  form  (Art.  1),  that  “a  territory  is  considered  as  oc- 
cupied Avhen  it  finds  itself  placed  in  fact  under  the  authority 


238 


rjGHTS  OF  SELF-DEFENSE 


§ 142. 


of  the  hostile  army.  The  occupation  extends  only  to  terri- 
tories where  this  authority  is  established  and  in  condition  to 
be  exercised.”  Occupation,  it  was  contended  on  one  side,  is  a 
vague  term,  and  may  answer  to  blockade  as  now  understood. 
To  be  valid  it  must  be  effective.  The  occupant  ought  always 
to  liave  force  enough  to  repress  an  insurrection.  This  was  the 
English  point  of  view.  The  opposite  or  German  view  denied 
that  occupation  had  the  same  cliaracter  with  blockade.  It 
does  not  always  manifest  itself  by  exterior  signs.  A town  left 
Avithout  troops  ought  nevertheless  to  be  considered  as  occupied, 
and  all  rismgs  there  should  be  severely  suppressed. 

There  must  be  such  a thing  as  occupation,  and  it  is  not  sus- 
ceptive of  exact  definition.  The  “ Institut  de  Droit  Inter- 
national,” in  1875,  in  examining  the  project  of  the  declaration 
at  Brussels,  accepted  the  definition,  “ that  a territory  is  consid- 
ered as  occupied  from  such  a time,  so  long  and  so  completely 
that  the  state  of  which  it  foi’ins  a part  is  prevented  by  the 
cessation  of  local  resistance  from  publicly  exercising  there  its 
sovereign  authority.”  It  is  not  our  part  to  discuss  here,  but 
only  to  relate.  We  only  express  our  opinion  that  no  definition 
can  confine  the  notion  of  occupation  within  exact  limits,  and 
that  the  fact  of  tlie  exercise  of  belligerent  poAver  near  a given 
place  Is  as  safe  a rule  to  go  by  as  any  other. 

Another  article  Avhich  Avas  much  complained  of  Avas  that 
(Art.  9)  Avhich  required  that  hiAvful  combatants  should  be  offi- 
cered, should  carry  arms  openly,  should  conform  to  the  rules 
of  war,  and  should  have  a distinctive  sign  (of  their  being  sol- 
diers), which  could  be  recognized  at  a distance.  To  this  it 
Avas  objected  that  it  Avould  prevent  the  rising  en  masse  of  a 
people  to  resist  an  invader,  Avhen  as  yet  unorganized  ; or  Avould 
compel  nations  Avhich  had  no  enforced  military  training  to  in- 
rroduce  one.  The  tenth  article,  Avhich  admits  the  right  of  a 
people,  in  a territory  as  yet  not  occupied,  to  resist  invaders,  al- 
though there  had  been  no  time  to  organize  according  to  Art.  9, 
and  Avhich  regards  them  as  belligerents  if  they  respect  the  la,Avs 
of  war,  set-ms  to  shoAV  that  in  Art.  9,  guerilla-warfare,  and  the 
like  practices  are  aini'-'d  at,  after  a country  has  been  occupied. 


§ 142. 


AND  DEDEESS  OF  INJURIES,  ETC. 


239 


And  have  not  the  rules  and  practice  of  war  been  extremely 
severe  towards  this  class  of  persons  ? But  enough  has  been 
said  to  show  that  nations  with  a system  of  military  training 
applicable  to  the  entire  population  of  able-bodied  men,  and 
other  nations  without  such  a system,  that  nations  which  expect 
to  invade  others  and  nations  which  have  outgrown  aggressive 
warfare,  can  hardly  be  expected  to  unite  on  any  body  of  rules, 
unless  they  be  of  the  most  meagre  description.  The  project 
of  the  conference  at  Brussels  aimed  at  too  much,  and  came 
from  a suspicious  quarter.  But  the  “ Institut  de  Droit  In- 
ternational ” was  not  far  out  of  the  way  in  adopting — although 
not  with  entire  unanimity  — the  following  conclusion:  that 
“the  project  of  a declaration,  agi’eed  upon  at  Brussels  . . . . 
althoucch  having  much  resemblance  to  the  American  instruc- 
tions  of  President  Lincoln,  has  the  advantage  over  them  of  ex- 
tending to  international  relations  a reeruhition  made  for  one 
state,  and  of  containing  new  requirements  at  once  practical, 
humane,  and  progi’essive.”  They  add  in  another  of  their  con- 
clusions that  the  project  is,  as  far  as  all  tlie  materials  included 
in  it  are  concerned,  “ et  quant  an  fond,  a la  hauteur  de  la 
science  actuelle,”  although  they  concede  that  the  elasticity  or 
vagueness  of  certain  expressions,  Avhich  is  an  inevitable  conse- 
quence of  the  necessity  of  securing  an  understanding  between 
different  states  can  give  a handle  to  rigorous  criticism.^ 

1 The  projects  and  the  protocols  of  the  sessions  of  tlie  conference  were  pub- 
lished in  a thin  quarto  form  at  Brussels.  The  projects  appear  in  an  annex  to 
L’ylmjleierre  et  les  Petits  Etuis  par  le  General  T.  Brussels,  1875.  The  Annual 
Reqisler  for  1874  contains  a brief  sketch  of  the  conference  [28l]-[284].  The  op- 
position to  the  project  prevented  the  holding  of  a second  meeting.  The  Revue  du 
Droit  I nternationale,  vol.  vii.,  for  1875,  contains  a history  of  the  conference  and  the 
conclusions  of  the  Institut  de  Droit  Internationale,  to  which  I have  referred. 


240 


RIGHTS  OF  SELF-DEFENSE 


§ 143. 


Section  III.  — Of  Civil  Wars,  Wars  with  Savages,  Piracy, 
and  the  Slave-trade. 

§ 143. 

We  have  thus  far  contemplated  wars  between  sovereign 
states  ; but  there  may  also  be  intestine  or  internal  wars  ; wars 
with  hordes  of  savages,  or  with  nations  not  governed  by  our 
international  code  ; and  wars  Avith  pirates. 

By  internal  war  Ave  intend  movements  more  serious  and  last- 
internai  than  seditioii,  waged  by  portions  of  the  people  of 

a country  against  one  another,  — including  in  the 
term  country  the  complex  body  of  a nation  and  its  colonies  or 
other  dependencies.  In  some  cases  the  connection  Avith  de- 
pendencies may  be  so  remote  that  the  Avar  may  almost  be  called 
a foreign  one.  A civil  Avar  is  one  in  Avhich  the  opposing  par- 
ties are  distributed  over  the  territory ; Avhile  a war  in  AA'hich 
they  are  localized  may  he  called  a rebellion,  insurrection,  or  re- 
volt. A civil  Avar  again  does  not  generally  aim  at  the  destruc- 
tion of  unity,  but  rather  at  some  change  of  government,  con- 
stitution or  laws,  Avhile  the  other  may  aim  at  sundering  parts 
before  united. 

With  internal  Avars  international  laAv  comes  into  contact  so 
far  as  the  laAvs  of  Avar,  tliat  is,  of  humanity  and  natural  justice, 
are  concerned,  and  also  in  the  bearings  of  the  Avar  upon  the 
interests  and  rights  of  foreign  states  — a point  to  be  considered 
in  the  sequel.  (§  179.)  In  every  state  there  are  laws  against 
resistance  to  the  authority  of  the  government,  defining  sedition, 
treason,  and  the  like,  and  punishing  in  person  or  property,  or 
both.  When  an  internal  Avar  breaks  out,  the  government  must 
determine  Avhether  the  municipal  or  the  international  code,  in 
Avhole  or  in  part,  shall  be  adopted.  In  general  the  relation  of 
the  parties  ought  to  be  nearly  those  of  ordinary  Avar,  Avhich  hu- 
manity demands,  and  loill  he,  because  otherAvise  the  law  of  re- 
taliation will  be  applied.  Municipal  laAV  may  be  enforced  Avith 
le.ss  evil  in  the  Avay  Oi  pecuniary  tlian  of  personal  penalt’es; 


§ U3. 


AND  KEDRESS  OF  INJURIES,  ETC. 


241 


fines  or  confiscations  may  be  efficacious  in  strengthening  the 
government  and  deterring  from  rebellion.  If  slaves,  as  among 
us,  form  a part  of  the  property  of  the  rebels,  since  slavery  is 
local  and  the  law  of  nations  knows  of  no  such  thing  (§§  74, 
135),  the  advancing  military  power  of  the  government  may 
set  them  free  and  use  or  protect  them  in  the  region  Avhich  it 
controls  ; and  indeed,  if  force  overthrows  the  local  laws  on 
which  slavery  rests,  they  become  free  of  course. 

The  same  rules  of  war  are  required  in  such  a war  as  in  any 
other  — the  same  ways  of  fighting,  the  same  treatment  of  pris- 
oners, of  combatants,  of  non-combatants,  and  of  private  prop- 
erty by  the  army  where  it  passes ; so  also  natural  justice  de- 
mands the  same  veracity  and  faithfulness  which  are  binding 
in  the  intercourse  of  all  moral  beings. 

Nations  thus  treating  rebels  by  no  means  concede  thereby 
that  they  form  a state,  or' that  they  are  de  facto  such.  There 
is  a difference  between  belligerents  and  belligerent  states, 
which  has  been  too  much  overlooked. 

When  a war  ends  to  the  disadvantage  of  the  insurgents, 
municipal  law  may  clench  the  nail  which  war  has  driven,  may 
hang,  after  legal  process,  instead  of  shooting,  and  confiscate  the 
whole  instead  of  plundering  a part.  But  a wise  and  civilized 
nation  will  exercise  only  so  much  of  this  legal  vengeance,  as 
the  interests  of  lasting  order  imperiously  demand. 

Again,  as  savage  tribes  are  not  governed  by  the  justice  which 
is  acknowledged  in  Christian  lands,  international  law  ^mrswith 
is  here  likewise  inapplicable.  But  here  one  of  the 
parties  being  a subject  of  a code  which  he  believes  to  be 
founded  in  justice,  it  would  be  flagitious  for  him  to  depart 
from  the  essential  principles  which  he  observes  towards  other 
Christian  states.  Thus  Avhile  summary  punishment  for  rob- 
bery and  treachery  may  be  expedient,  the  Christian  state  is 
bound  by  its  own  character  and  practice,  in  warring  with  sav- 
ages, to  exercise  good  faith  and  humanity,  to  treat  prisoners 
well,  to  respect  treaties  and  truces,  and  to  regard  the  civil 
rights  of  the  savage  communities.  For  though  too  degraded 
to  understand  what  their  obligations  are,  they  can  be  raised 
10 


242 


RIGHTS  OF  SELF-DEFENSE 


14-3, 


far  above  their  present  level  by  humane  examples  ; while  civ- 
ilized men,  falling  down  in  their  dealings  with  savages  to  their 
level,  only  increase  their  spirit  of  suspicion  and  revenge,  and 
sink  them  to  lower  depths  of  ferocity. 

Here  let  it  be  added,  that  the  civilized  and  half-civilized 
nations  of  the  world,  which  have  not  acknowledged 
our  law  of  nations,  deserve  a peculiar  consideration. 
The  object  in  their  case  ought  to  be  not  only  to  act 
justly  and  kindly  towards  them,  but  also  to  lead  them 
to  adopt  our  international  law.  Why  should  they  not,  if  it  is 
based  on  the  true  principles  of  human  nature,  presupposes  a 
universal  morality,  and  is  thus  fitted  to  be  the  law  of  man- 
kind ? In  all  probability  a short  time  will  be  needed  to  bring 
Persia,  Siam,  China,  or  Japan,  fully  under  this  law,  compared 
with  that  during  which  Christian  states  have  been  making  and 
breaking  it. 


Dealings 
with  civil- 
ized nations 
who  do  not 
own  our 
code. 


144. 


With  piracy,  however,  the  law  of  nations  has  to  do,  as  it  is 
a crime  not  against  any  particular  state,  but  against 

Pirates  and  ® ct 

their  treat-  all  statcs  aud  tlic  established  order  ot  the  world. 

Piracy  is  robbery  on  the  sea,  or  by  descent  from  the 
sea  upon  the  coast,  committed  by  persons  not  holding  a com- 
mission from,  or  at  the  time  pertaining  to,  any  established 
state. ^ It  is  the  act  (1)  of  persons  who  form  an  organization 
for  the  purposes  of  plunder,  or  with  malicious  intent ; but  who, 
inasmuch  as  such  a body  is  not  constituted  for  political  pur- 
poses, cannot  be  said  to  be  a body  politic  ; (2)  of  persons  who, 
having  in  defiance  of  law  seized  possession  of  a chartered  ves- 
sel, use  it  for  the  purpose  of  robbery  ; (3)  of  persons  taking  a 
commission  from  two  belligerent  adversaries.  The  reason  for 
ranking  these  latter  among  pirates  is,  that  the  animus  furandi 
is  shown  by  acting  under  two  repugnant  authorities.  It  has 
been  held  by  some  that  a vessel  which  takes  commissions  even 


1 If  the  robbery  is  confined  to  the  land,  although  committed  by  the  crew  of  a 
ves.sel,  i.  e.,  if  it  be  committed  within  the  territorial  jurisdiction  of  any  nation,  it 
would  !;ot  be  called  piracy,  aud  would  be  justiciable  by  the  sovereign  of  the  ter- 
ritory alone.  Dana  on  Wheaton,  note  83. 


§ 144. 


AND  EEDRESS  OF  INJURIES,  ETC. 


243 


from  two  allies,  is  guilty  of  piracy,^  but  others,  as  Wheaton 
(“Elements,”  ii.,  2,  § 15),  and  Phillimore  (i.,  394),  regard 
such  an  act  only  as  illegal  and  irregular. 

On  the  other  hand  it  is  not  held  to  be  piracy,  if  a privateer 
or  other  armed  vessel,  exceeding  its  commission,  prey  on  com- 
merce admitted  by  its  sovereign  to  be  friendly.  Offenses  of 
this  kind  entitle  the  injured  party  to  compensation,  but  the 
jurisdiction  belongs  to  the  vessel’s  sovereign,  who  is  responsi- 
ble for  the  conduct  of  his  officer. 

Piracy  being  a crime  against  nations,  may  be  brought  before 
any  coui’t,  no  matter  Avhat  the  nationality  of  the  plaintiff  or 
the  origin  of  the  pirate  may  be.  It  is  a natural  although  not 
a necessary  consequence  of  this  principle,  that  an  acquittal  by 
any  court  in  Christendom  is  an  effectual  bar  against  another 
trial  for  the  same  offense. 

As  pirates  acquire  no  title  to  what  they  take,  on  recapture 
it  reverts  to  the  proprietor  without  application  of  the  rule  of 
postliminy,  but  the  re-captor  can  claim  salvage.  (Comp.  § 
151.) 

The  punishment  of  piracy  depends  on  the  municipal  law  of 
the  state  where  the  offense  is  tried ; the  penalty  commonly 
inflicted  is  death. 

The  law  of  each  state  may  enlarge  the  definition  of  the 
crime  of  pirac}’,  but  must  confine  the  operation  of  the  new  def- 
inition to  its  own  citizens  and  to  foreigners  on  its  own  vessels. 
So  by  treaty  two  states  may  agree  to  regard  as  piracy  a partic- 
ular crime  which  is  not  classed  under  international  piracy. 
The  effect  of  such  a treaty  is  to  give  to  both  states  jurisdiction 
for  this  crime  over  the  citizens  or  subjects  of  both,  but  its 
operation  has  no  bearing  on  other  nations. 

In  the  time  of  Bynkershoek  it  was  made  a question  whether 
the  Barbary  powers  were  pirates,  as  earlier  writers  on  the  law 
of  nations  had  pronounced  them  to  be.  He  decides  that  they 
form  states,  and  may  be  “ justi  hostes  ” in  war ; and  that  in 
fact  Europe  had  acknowledged  this  by  making  treaties  with 

1 This  is  taught  by  Hautefeuille  (i.,  190,  erl.  2)  after  Masse,  De  Martens  {Sur 
les  Armaleurs,  chap.  2,  § 14),  and  Valin. 


244 


RIGHTS  OF  SELF-DEFENSE 


144 


them.  No  one  now  will  question  this,  especially  as  in  the 
course  of  time  these  states,  — those  of  them  Avhich  still  exist,  — 
have  in  a measure  laid  aside  their  piratical  habits.^ 

§ 145. 

Could  the  crews  of  war-vessels,  public  or  private,  of  a gov- 
Arc  the  eminent  like  the  Confederated  States,  be  regarded  as 
"bervisscis  pirates  ? This  question  came  before  our  courts  early 
pirates?  g^gg  g£  ^l^g  gj.g^y  gjf  ^Pg  Savamiah 

and  of  one  of  the  crew  of  the  Jeff  Davis.  In  the  first  case 
Judge  Nelson  instructed  the  jury  that  the  offense  committed 
by  the  said  crew  was  not  piracy  according  to  the  law  of  na- 
tions, for  the  captain’s  design  was  to  prey  on  the  commerce  of 
the  United  States  only,  Avhile  piracy  implies  war  against  na- 
tions in  general.  If  piracy,  it  was  such  only  by  a law  of  the 
United  States  of  the  year  1820.  But  the  commission  given  by 
the  Confederate  States  could  not  be  admitted  as  a defense,  for 
the  courts  could  not  recognize  such  an  authority  before  the 
government  had  so  done.  Yet  felonious  intent  being  essential 
to  robbery  on  land  or  sea,  if  this  were  wanting  the  offense 
could  not  be  piracy  under  the  statute  which  defines  it  as  com- 
mitting robbery  in  or  upon  any  shiji,  ship’s  lading,  or  company. 

In  the  case  of  the  Golden  Rocket,  captured  and  burnt  by 
the  privateer  Sumter,  it  was  held  (by  the  State  and  circuit 
courts)  that  the  owner  could  not  recover  for  the  loss  under 
policies  which  insured  against  capture  by  pirates.  For  al- 
though the  destruction  of  this  vessel  might  be  held  to  be  a 
piratical  act  under  the  law  of  the  United  States,  it  would  not 
be  held  to  be  such  by  the  general  commercial  law  of  the  world, 
which  must  be  presumed  to  govexm  in  the  interpretation  of  the 
policy. 

* For  piracy  in  general,  comp,  especially  Bynkersliock,  Quccst.  J.  P.,  i.,  17,  enti- 
tled, “ De  Piratica,  et  an  Barbaii  in  Africa  sint  Piratie.”  Comp,  also  Kent,  Lcct. 

and  Wildman,  ii.,  150.  The  ])rincipal  ])assages  of  the  Roman  lawyers  re- 
specting restoration  of  things  taken  by  pirates  without  postliminy',  are  one  from 
Ulpian  (Dig.,  49,  Tit.  15,  24),  “ qui  a latronibus  captus  est,  servus  latroniim  non 
est;  nec  postliminium  illi  necessariitm  est,”  and  one  from  Paulus  (u.  s.,  19,  § 2), 
“a  piratis  aut  latronibus  capti  liberi  permanent.” 


§ 146. 


AND  REDKESS  OF  INJURIES,  ETC. 


245 


These  decisions  are  in  conformity  with  the  law  of  nations, 
and  with  our  own  declared  views  and  claims  under  it.  A pri- 
vateer of  an  organized  rebellious  community,  acting  under  let- 
ters of  marque  given  by  the  supreme  authority  according  to 
law,  is  not  doing  piratical  work  when,  in  a state  of  open  war, 
it  preys  on  the  commerce  of  its  enemy,  although  its  govern- 
ment be  as  yet  unrecognized.  For  (1)  There  is  in  this  case  no 
animus  fur andi ; (2)  the  commission  is  a special  one  against  a 
particular  enemy,  and  not  against  mankind  ; (3)  and  thus  the 
captures  made  by  such  a vessel  will  not  be  noticed  by  the 
courts  of  neutral  countries,  as  crimes  against  the  law  of  nations. 
Accordingly,  when  Denmark  delivered  up  to  Great  Britain 
t three  prizes,  carried  into  a port  of  Norway  by  Paul  Jones  in 

I the  Revolutionary  War,  we  complained  of  it,  and  continued 

I our  reclamations  through  more  than  sixty  years.  (Comp.  De 

\ Martens,  “Nouvelles  Causes  C^lebres,”  i.,  pp.  492-495,  Law- 

I rence  in  his  new  French  commentary  on  Wheaton,  i.,  176- 

179,  and  Professor  Bernard,  of  Oxford,  “British  Neutrality,” 
pp.  119-121.) 

§ 146. 

In  the  progress  of  humane  and  Christian  principles,  and  of 
correct  views  of  human  rights,  slavery  has  come  to 

, "l  . f'’®  plave- 

be  regarded  as  an  unjust  and  cruel  degradation  of  trade  pira- 
man  made  in  the  image  of  God.  It  is,  accordingly,  a 
status  unprotected  by  the  law  of  nations,  and  supported  where 
it  exists,  only  by  local  law.  (§  74.)  Hence  persons  seized  to 
be  sold  as  slaves  in  a territory  where  the  importation  of  slaves 
is  forbidden,  commit  no  crime  when  they  get  possession  of  the 
vessel,  and  either  slay  the  crew,  or  compel  them  to  sail  for 
another  country.  They  are  only  defending  their  lawful  rights. 
Thus,  when  certain  blacks  who  had  lately  been  imported  into 
Cuba  from  Africa,  and  were  therefore  illegally  held  in  bond- 
age, and  were  by  right  free  according  to  Spanish  law,  rose  on 
the  crew  between  Havana  and  Puerto  Principe,  killed  the 
captain,  and  finally  came  into  the  waters  of  the  United  States, 
it  was  held  by  the  Supreme  Court  that  if  they  had  been  slaves, 
our  treaties  with  Spain  would  have  required  their  restora- 


246 


RIGHTS  OF  SELF-DEFENSE 


§ 146. 


tion,  but  that  they  were  not  slaves,  and  if  not  slaves,  not 
j)irates.^ 

With  new  vieAVs  of  men’s  rights,  and  with  fuller  knowledge 
of  the  woes  inflicted  on  Africa  by  the  slave-trade,  this  traffic, 
Avhich  misguided  benevolence  at  first  suggested,  became  abhor- 
rent to  the  feelings  of  Christendom,  and  has  everywhere  be- 
come unlawful.  Denmark,  we  believe,  led  the  way,  in  1792, 
by  prohibiting  the  slave-trade,  and  importation  into  her  colo- 
nies of  slaves  from  abroad  after  the  year  1802.  Under  the 
Constitution  of  the  United  States,  the  importation  of  slaves 
could  not  become  illegal  before  1808,  but  acts  passed  in  1794 
and  1800  forbade  all  citizens  and  residents  to  carry  slaves 
from  this  country  to  a foreign  one,  or  from  one  foreign  country 
to  another.  In  1807  the  importation  of  slaves  was  made  to 
cease  after  January  1,  1808,  and  in  1818  a law  was  passed  in- 
creasing the  penalties  of  the  trade,  and  applying  to  all  partici- 
pation of  citizens  of  the  United  States  in  it.  In  1819  the  ves- 
sels and  effects  of  citizens  found  to  have  been  engaged  in  the 
trade  were  made  liable  to  seizure  and  confiscation.  And  by 
the  act  of  March  3,  1820,  all  persons  over  whom  our  jurisdic- 
tion extends,  that  is,  all  persons  in  vessels  owned  within  the 
United  States,  and  all  citizens  on  foreign  vessels,  concerned  in 
tlie  slave-trade,  or  in  kidnapping  negroes  or  mulattoes,  were  to 
be  esteemed  pirates  and  to  suffer  death. 

In  Great  Britain,  the  first  act  declaring  the  slave-trade  un- 
lawful was  passed  in  1807,  but  not  until  1824  was  it  pro- 
nounced to  be  piracy.  Nearly  all  the  nations  of  Europe  have 
subsequently  passed  laws  more  or  less  stringent  against  the 
traffic.  Its  abolition  was  conceded  by  Spain  in  her  treaty 
with  Great  Britain,  in  September,  1817.  Portugal  agreed  to 
prohibit  it  north  of  the  equator,  by  treaty  with  England,  of 
January  22,  1815,  and  it  ought  by  the  same  treaty  to  have 
come  altogether  to  an  end  when  the  independence  of  Brazil 
was  acknowledged  in  1825.  It  ceased  to  be  legal  in  Brazil  by 
1830,  and  in  1831,  a law  of  that  country  not  only  freed  all 
slaves  who  should  be  imported  afterwards,  but  also  provided 
for  their  reconveyance  to  Africa. 

^ United  States  v.  The  Amistad,  15  Peters,  518-598. 


§ 146  AND  REDRESS  OF  INJURIES,  ETC.  247 

In  1824,  the  House  of  Representatives  in  our  Congress,  by  a 
very  large  majority,  requested  the  President  to  make  arrange- 
ments, by  which  the  slave-trade  should  become  piracy  under 
international  law  ; but  nothing  was  hereby  effected.  (§  217.) 
Great  Britain,  both  before  and  after  this,  in  a number  of  trea- 
ties, secured  the  suppression  of  the  trade,  with  the  mutual 
right  of  search,  of  which  we  shall  speak  hereafter.  (§  21G.) 
In  her  treaty  with  Brazil,  of  March  13,  1827,  it  was  stipu- 
lated, that  after  three  years  a subject  of  the  Emperor  of  Brazil, 
carrying  on  the  trade,  should  be  deemed  and  treated  as  a 
pirate.  This  must  mean  that  whatever  may  be  done  under 
the  laws  of  nations,  for  the  detection  and  seizure  of  pirates, 
might  be  done  under  the  treaty  towards  Brazilian  slave- 
traders,  as  search,  capture,  and  trial  before  the  captor’s  courts ; 
but  England  forbore  to  take  the  steps  to  which  the  treaty 
gave  her  a right.^ 

However  much  the  slave-trade  may  deserve  to  be  ranked 
with  piracy,  or  ranked  as  a worse  crime  still,  it  is  not  yet  such 
by  the  law  of  nations,  and  would  not  be,  if  all  the  nations  in 
Christendom  constituted  it  piracy  by  their  municipal  codes. 
For  the  agreement  of  different  states  in  the  definitions  and 
penalties  of  crimes,  by  no  means  gives  to  any  one  of  them  the 
right  to  execute  the  laws  of  another.  That  power  must  be 
acquired  by  treaty  between  separate  states,  or  by  consent  of 
all  states,  in  which  latter  case  it  would  belong  to  international 
law.  Meanwhile,  the  fact  that  the  slave-trade  has  not  been 
placed  in  this  category,  adds  greatly  to  the  difficulty  of  sup- 
pressing it,  as  will  appear  in  the  sequel.  (§  218,  but  comp. 
§219,  end.) 

^ IVildrnan,  ii.,  150  seq.  For  the  section  in  general,  comp.  Kent,  Lect.  ix. 


248 


EIGHTS  OF  SELF-DEFENSE 


§ 147. 


Section  IV. — Capture  and  Recapture,  Occupation  and  Re- 
covery of  Territory. 

§ 147. 

Capture  of  private  property  has  nearly  disappeared  from 
land  warfare,  but  is  allowed  by  international  war,  as 

Capture  in  n • i r i e 

general,  cs-  well  lu  the  case  of  neutrals  as  of  enemies,  at  sea. 
from  ene-  The  Same  humaue  principles,  however,  which  have 

mies.  ♦ , 

put  a stop  to  it  on  the  one  element,  are  at  work  to 
abridge  its  sphere  on  the  other.  The  rule  alread}'-  adopted  by 
the  principal  European  powers,  that  free  ships  engaged  in  law- 
ful trade  makes  free  goods,  has  already  become  nearly  univer- 
sal ; and  if  so,  the  hostile  property  exposed  to  the  cruisers  of 
the  other  belligerent  may  become  so  inconsiderable,  that  the 
trade  of  plundering  on  the  sea  will  be  hardly  worth  carrying 
on.  J\Iean while,  the  only  specious  pretexts  for  marine  capture 
are  these  two,  that  the  enemy's  commerce  furnishes  him  with 
the  means  of  war,  so  that  it  may  justly  be  obstructed,  and  that 
the  captured  vessels  are  pledgefe  for  the  reparation  of  injuries. 
The  former  pretext  will  amount  to  nothing,  if  hostile  trade 
can  be  conducted  in  such  a way  as  to  exempt  it  from  capture. 
The  other  pretext  ivould  require  that  ships  and  goods  captured 
be  regarded,  until  peace  settles  all  questions  between  nations, 
as  simply  detained  to  be  restored,  or  have  an  equivalent  paid 
for  them  if  necessary.  We  must  profess,  however,  that  we 
indulge  that  “ pious  chimaera,”  as  it  has  been  called,  that  all 
private  property  on  the  sea,  engaged  in  a lawful  trade  to  per- 
mitted ports,  ought  to  cross  the  seas  in  safety ; we  have  the 
sanction  of  the  authority  of  Franklin,  and  of  sober  propositions 
made  by  our  own  government,  for  regarding  such  a rule  as 
both  desirable  and  practicable ; we  must  esteem  it  nearer  to 
justice,  and  certainly  to  humanity,  that  the  pi'esent  inequality 
of  risk  on  the  two  elements;  and  it  will  probably  be  found, 
owing  to  the  new  rule  in  favor  of  neutrals,  that  marine  capture 
will  not  be  worth  retaining.* 

^ In  a meeting  of  the  Chambers  of  Commerce  of  Hamburg  and  Bremen,  ref"^" 


§ U8. 


AND  REDRESS  OF  INJURIES,  ETC. 


249 


The  fact,  meanwhile,  is,  that  on  land  the  property  of  com- 
batants, when  taken  in  battle,  goes  to  the  victors,  and  tliat 
soldiers  have  generally  free  license  of  plunder  at  the  storming 
of  towns.  On  the  sea,  property  of  the  enemy's  subjects  in 
their  ships  is  lawful  prize,  unless  secured  by  a special  permit. 
And  on  both  elements  most  kinds  of  public  property  of  the 
enemy  are  exposed  to  hostile  depredations.  The  right  has 
been  exercised  even  against  such  vessels  as  have  had  no  notice 
of  the  commencement  of  hostilities,  and  everywhere  except  in 
neutral  waters. 

§ 148. 

From  the  principle  that  states  are  the  belligerent  parties, 
it  flows,  as  we  have  seen,  that  an  authority  derived  p^perty  in 
from  the  state  is  necessaiw,  before  a prize  can  be  and  whc^'" 
taken.  It  flows,  also,  from  the  same  principle,  that 
all  private  title  to  prize  must  be  derived  from  the  la-ws  of  the 
state.  When  does  such  a title  commence  ? Some  have  said, 
at  the  moment  of  capture,  or  of  taking  possession,  as  though 
the  vessel  taken  were  a res  nullius  ; others,  after  twenty-four 
hours’  possession  ; otliers,  when  the  prize  is  carried  ivfra 
prcesidia,  and  is  thus  secure  against  .recapture  ; ^ and  others, 
finally,  Avhen  a court  has  adjudged  it  to  the  captor.  “ The 
question,”  saj'^s  Kent,  “ never  arises  but  between  the  original 
owner  and  a neutral  purchasing  from  the  captor  ; and  between 
the  original  owner  and  the  recaptor.  If  a captured  ship  es- 

tioiis  were  passed  not  long-  after  tlie  adoption  of  the  rules  of  18")6,  to  memorialize 
a congress  expected  to  meet  at  Paris,  in  favor  of  the  exemption  of  private  prop- 
rrtv  oil  the  sea  from  capture.  The  resolution  pas.sed  at  Bremen,  December  2, 
1859,  is  .as  follows:  “That  the  inviolability  of  person  and  property  in  time  of 
war,  on  the  high  seas,  (extended  also  to  the  subjects  and  citizens  of  belligerent 
states,  except  so  far  as  the  operations  of  war  necessarily  restrict  the  same,)  is  im- 
perativelv  demanded  by  the  sentiments  of  justice  universiilly  entertained  at  the 
pre.sent  day.”  They  then  request  the  Senate  of  Bremen  to  support  this  prin- 
ci]>le,  and  to  lay  the  subject  before  the  German  Confederation  or  the  proposed 
Congress. 

1 Comp.  Bynker.-.h.,  Quess!.,  J.  P.,  i.,  4.  The  twenty-four  hours’  rule  grew  up 
in  modern  Europe,  and  is  purely  arbitrary.  The  rule  that  the  prize  must  be  car- 
ried infra  prtesidia,  was  a Roman  one  : “ cujus  juris  non  alia  ratio  est  quam  quod 
tunc  omnis  rei  persequendoe  et  recuperandae  spes  decollavcrit.”  Bynkersh.,  u.  s. 


250 


EIGHTS  OF  SELF-DEFENSE 


§ 143. 


capes  from  the  captor,  or  is  retahen,  or  the  owner  ransoms 
her,  his  property  is  thereby  revested.  Bat  if  neitlier  of  these 
events  happens,  the  questioa  as  to  cliange  of  title  is  open  to 
dispute,  and  many  arbitrary  lines  have  been  diawn,  partly 
from  policy,  to  prevent  too  easy  disposition  of  the  property  of 
neutrals,  and  partly  from  equity,  to  extend  tlieyws  postlhninii 
in  favor  of  the  owner.”  ^ Thus  there  is  no  settled  view  or 
principle  as  to  the  time  when  a title  from  capture  begins. 
Perhaps  no  definite  rule  can  be  laid  down  any  more  than  in 
answering  the  question  when  occupation  ends  in  ownership, 
which  the  laws  of  different  states  will  determine  differently. 
The  state’s  title  begins  in  the  fact  of  seizure  according  to  the 
rights  of  war  — that  is,  “when  the  battle  is  over,  and  the 
spes  recuperandi  is  gone.”  (Phillimore,  3,  460.)  But  the 
title  can  be  contested  in  certain  circumstances  by  neutral  gov- 
ernments, as  on  the  ground  that  capture  was  made  in  their 
waters  ; or  by  private  subjects  of  neutral  governments,  as  in 
the  various  cases  of  seizure  of  neutral  goods  and  ships  ; or  by 
subjects  of  the  enemy,  as  where  licenses  to  ti’ade  were  not  re- 
spected by  the  captor.  If,  now,  a neutral  buys  the  prize  im- 
mediately after  capture,  he  buys  it  subject  to  the  claims  of 
injured  parties,  and  has  his  remedy  in  the  captor’s  courts, 
provided  the  latter  conveys  that  for  which  he  had  no  good 
title.  If  the  owner  ransoms  her,  he  extinguishes  the  captor’s 
title,  of  whatever  kind  it  be,  good  or  bad.  The  laws  of  the 
state  determine  the  steps  which  the  captor,  as  the  state’s  agent, 
must  take  in  regard  to  the  property,  and  especially  at  what 
time  he  is  allowed  to  have  an  entire  or  partial  interest  in  the 
things  taken.  It  is  the  first  duty  of  the  captor,  says  IMr.  Wild- 
man  (ii.,  176),  to  bring  in  his  prize  for  adjudication,  but  “if 
this  is  impossible,  his  next  duty  is  to  destroy  the  enemy’s 
property : if  it  be  doubtful  whether  it  be  the  enemy’s  prop- 
erty, and  impossible  to  bring  it  in,  no  such  obligation  arises, 
and  the  safe  and  proper  course  is  to  dismiss.”  Of  course,  if 
this  doctrine,  based  on  English  decisions,  be  true,  destruction 
1 Kent,  i.,  101,  Lect.  v. 


§ 148. 


AND  EEDRESS  OF  INJURIES,  ETC. 


251 


of  neutral  ships  or  property  by  mistake  must  be  made  good 
by  the  cruiser's  government.^ 

In  the  Revolutionary  War,  and  in  the  War  of  1812,  our 
cruisers  burned  such  British  vessels  taken  by  them,  as  it  was 
not  convenient  to  send  into  port.  The  Confederate  ships  in  the 
late  war  followed  the  same  rule  in  respect  to  our  vessels. 
Such  has  been  the  authorized  usage  for  vessels  acting  under  a 
commission  from  the  British  government.  The  French,  while 
the  Berlin  and  Milan  decrees  were  in  force,  burnt  a number 
of  neutral  American  vessels  having  on  board  merchandise  of 
British  origin.  Probably  the  custom,  at  least  in  regard  to 
hostile  ships  captured,  is  an  ancient  one. 

According  to  English  decisions,  the  destruction  of  neutral 
vessels  taken  as  prizes,  can  be  justified  only  by  the  most  cogent 
reasons  of  public  service  ; and  if  such  a vessel  is  burnt  wan- 
tonly, or  under  a plea  of  necessity,  the  captor  or  his  govern- 
ment is  responsible.  If  a vessel  sailing  under  a valid  license 
is  destroyed  in  the  belief  that  the  license  is  invalid,  restitution 
must  be  made  with  costs  and  damages.  (Case  of  the  Actceon, 
Dodson’s  Admiralty  Reports,  ii.,  48.)  In  the  case  of  the 
William,  as  the  validity  of  the  license  was  doubtful  enough  to 
justify  the  capture,  restitution  Avas  decreed  Avithout  costs  and 
damages  (Ibid.,  ii.,  55).  In  the  case  of  the  Felicity  the 

captain  concealed  his  license,  and  even  denied  having  one  until 
the  vessel  was  on  fire,  the  captor  Avas  freed  from  liability. 
(Ibid.,  ii.,  381.) 

The  Avhole  practice  is  a barbarous  one,  and  ought  to  disap- 
pear from  the  history  of  nations.  And  yet  the  rules  of  1856 
do  net  saA'e  neutral  property  on  enemies’  vessels  from  the 
risk  of  being  burnt,  although  they  are  not  liable  to  capture. 
Tavo  German  vessels,  in  the  late  Franco-German  war,  being 
taken  and  burnt  the  same  day,  and  a prize-court  at  Bordeaux 
having  decided  that  the  burning  of  the  ships  Avith  the  neutral 
goods  AA'as  authorized,  the  neutrals  interested  in  the  cargo 
appealed  to  the  Council  of  State,  for  compensation  for  their 

1 The  doctrine  is  unsafe  for  neutrals,  where  the  cruiser  pertains  to  a belligerent 
de  facto,  attempting  to  become  a nation,  not  to  a lawful  and  acknowledged  power 


252 


EIGHTS  OF  SELF-DEFENSE 


§ 148. 


property  destroyed,  and  the  decision  went  against  them  on  the 
following  grounds  : 1.  That  though  Article  III.  of  the  declar- 
ation of  1856  gives  to  a neutral  owner  a right  to  the  restitu- 
tion of  his  goods  or  the  payment  of  the  price,  it  does  not 
follow  that  he  can  claim  indemnity  on  account  of  acts  of 
injury  caused  to  him  by  valid  capture,  or  by  acts  of  war  con- 
nected with  such  capture.  2.  The  destruction  was  due  to  the 
fact  that  the  commander  of  the  capturing  vessel  had  so  many 
prisoners  on  board  that  he  could  spare  none  of  his  crew  for  the 
purpose  of  taking  these  prizes  into  a French  port.  3.  Hence 
the  burning  was  a continuation  of  the  fact  of  war,  the  fitness 
of  which  the  owners  of  the  cargo  could  not  be  allowed  to  dis- 
cuss. To  have  decided  otherwise  would  have  been,  remarks 
M.  Calvo,  to  subordinate  the  rights  of  belligerents  to  those  of 
neutrals,  where,  in  an  extreme  case,  they  were  in  conflict.  See 
Calvo,  ii.,  670-672. 

§ 149- 

By  modern  usage,  a complete  title  to  a prize  taken  at  sea, 
is  given  to  the  captor  only  by  the  sentence  of  a com- 
uticg'ivcn  petent  court.  By  a competent  court  is  intended  one 
bid  court,  Py  tPe  of  the  state,  has  jurisdiction  in 

matters  pertaining  to  prize,  no  matter  what  other  jurisdic- 
tion it  may  have,  or  not  have.  Such  courts  in  this  country, 
are  the  District  and  Circuit  Courts  of  the  United  States  with 
appeal  up  through  the  Circuit  to  the  Supreme  Court  of  the 
Union  ; such  were,  in  France,  after  1659,  the  Council  of  Prizes, 
with  appeal  to  the  Council  of  State,  and  thence  to  the  Royal 
Council  of  Finance  ; and  such  have  been,  in  the  British  do- 
minions, the  Vice-admiralty  and  Admiralty  courts,  from  whom 
appeal  lies  to  a committee  of  members  of  the  Privy  Council, 
known  as  the  Judicial  Committee.  And,  in  general,  the  court 
must  be  one  acting  under  the  authority  of  the  captor's  sove- 
reign, and  holding  its  session  at  home  or  within  the  territory  of 
an  allv.  A consul  or  ambassador  residing  abroad  has  no  ju- 
risdiction. it  is  held,  in  prize  cases;  and  when  the  Fiench  gov- 
ernment, in  1796,  allowed  their  consuls  and  vice-consuls  in 
neutral  ports  to  decide  such  questions.  Sir  W.  Scott  declared 


§ 150. 


AND  REDRESS  OF  INJURIES,  ETC. 


253 


it  a thing  unheard  of.  (Manning,  p.  381 ; Heiiter,  § 138.) 
Neutrality  is  too  delicate  a thing  to  allow  either  the  courts  or 
territory  of  neutrals  to  be  used  in  such  cases. ^ It  is  not  nec- 
essary, however,  that  the  prize  itself  should  be  conveyed  into 
the  ports  of  the  captor’s  sovereign  or  of  his  ally  ; but  if  a neu- 
tral consents,  it  may  be  taken  into  a convenient  port  of  that 
description.  Such  consent  the  neutral  may  give  or  Avithhold, 
as  he  judges  best,  and  it  is  not  generally  withheld  ; but  per- 
haps the  strictest  notion  of  what  neutrality  requires,  demands 
of  them  to  close  their  ports  to  prizes,  unless  some  urgent  cause, 
as  a storm,  or  the  vessel’s  condition,  should  render  temporary 
sojourn  there  necessary.  It  will  be  the  captor’s  right,  if  the 
neuti'al  opens  his  ports,  to  carry  there  prizes  taken  from  the 
neutral’s  own  subjects  as  well  as  those  belonging  to  any  other 
national  it  v.^ 

§ 150. 

It  may,  for  various  reasons,  be  inconvenient  to  send  a prize 
into  a port,  and  a captor  so  situated  will  be  apt,  if 

^ •1.1^1  Ransom  of 

permitted,  to  let  the  prize  go  free  again  for  less  than  captured 
its  worth.  For  these  reasons,  and  in  accordance  with 
the  practice  of  ransom  formerly  so  common  on  the  land,  it  be- 
gan to  be,  about  the  end  of  the  seventeenth  century,  the  cus- 
tom to  allow  captors  to  liberate  a captured  vessel  on  an  engage- 
ment to  pay  a certain  ransom,  which  may  be  looked  at  in  the 
light  of  a repurchase.  The  receipt  for  the  ransom  is  of  the 
nature  of  a passport  or  safe  conduct,  and  contains  a permission, 
good  against  all  ci'uisers  of  the  belligerent  or  his  ally,  to  pur- 
sue a certain  voyage.  Only  in  cases  of  necessity  can  the  route 
and  time  laid  down  be  departed  from  without  violating  the 
contract.  The  contract  insures  against  molestation  from  other 

1 Sir  W.  Scott  knew  of  no  instance  where  neutral  courts  exercised  .such  juris- 
diction, but  Mr.  Manning  produces  one  from  a treaty  made  between  Denmark 
and  Genoa,  in  1789  (p.  381). 

2 It  may  be  urged  against  the  present  mode  of  constituting  prize-courts  that 
they  are  one-sided  and  partial.  Hence  the  proposition  has  been  made  to  establish 
mixed  or  neutral  prize-courts,  wliich  should  sit  during  a war.  But  as  long  as 
nations  differ  as  much  as  they  do  now  in  regard  to  important  points  of  sea-law, 
this  is  hardly  praciicable. 


254 


EIGHTS  OF  SELF-DEFKNSK 


§ 150. 


cruisers,  but  uot  against  other  kinds  of  hazard,  and  the  ran- 
som would  still  be  binding,  if  nothing  were  said  to  the  con- 
trary, in  case  the  vessel  perished  by  the  perils  of  the  seas. 

As  it  is  difficult  to  enforce  the  payment  of  ransom  during 
war,  the  custom  has  prevailed  more  or  less  to  deliver 
secure  the  ovei’  to  tile  caotor  liostages,  who  might  be  detained 

ransom.  c, 

until  tlie  liquidation  of  the  contract,  and  whose  ex- 
penses were  provided  for  in  the  ransom-bill.  The  hostage 
being  only  collateral  security,  his  death  or  flight  cannot  re- 
lease from  the  contract.  If  the  master  or  owners  refuse  to 
fulfill  their  stipulation,  the  hostage’s  remedy  lies  in  an  appeal 
to  the  courts  of  the  captor’s  or  owners’  country. 

If  a ransomed  vessel  is  captured  out  of  its  course  and  con- 
demned, the  ransom  is  deducted  from  the  proceeds  of  the 
vessel,  and  only  the  remainder  goes  to  the  second  captor.  If 
the  captor’s  vessel  is  recaptured,  with  the  ransom  contract,  or 
Avitli  the  hostages,  or  with  both  on  board,  there  is  held  to  be 
a complete  end  to  all  claim  for  payment. ^ If,  on  the  other 
hand,  the  captor’s  vessel  is  taken  after  putting  the  ransom- 
bill  and  hostage  in  a place  of  safety,  the  contract  continues 
unimpaired : nay,  it  is  held  so  to  continue,  if  the  captor’s 
vessel  is  taken,  and  the  securities  for  the  payment  of  ransom 
are  concealed  so  as  not  to  come  into  the  actual  possession  of 
the  second  captor.  And,  again,  when  a captor’s  vessel  was 
captui’ed  Avith  the  hostage  and  the  ransom-bill  on  board,  in 
Avhich  there  was  an  agreement  that  payment  should  be  binding 
notAvith standing  a possible  second  capture,  the  English  courts 
decided  that  the  first  captor,  being  an  alien,  could  not  by  their 
laAVS  bring  a suit  for  the  recovery  of  a right  acquired  in  ac- 
tual Avar.  But  in  this  case  the  hostage  might  sue,  or  in  case 
of  his  death,  the  captor  after  the  end  of  the  Avar.^ 

The  master  of  a vessel  being  an  agent  for  the  owners,  they 
are  bound  by  his  act,  when  not  fraudulent  nor  contrary  to 

1 So  WilJman,  ii.,  273,  after  Valin.  But  why,  if  the  first  captor  had  transmit- 
ted the  bill,  retaining  the  hostage  who  is  only  a collateral  security,  should  not  his 
claim  be  still  good  1 

2 Wildman,  ii.,  275. 


§ 150.  AXI)  liKDUESS  OF  INJURIES,  ETC.  255 

usage.  But  if  the  ransom  should  exceed  the  value  of  ship 
and  cargo,  it  is  held  that  the  o'wners  by  surrendering  these 
may  be  free  from  obligation. 

A ransom  contract  is  not  invalid  under  the  law  of  nations, 
although  made  in  war,  since  it  contemplates  a state  of  war 
which  it  seeks  to  mitigate.  Nevertheless,  no  nation  is  bound 
to  allow  its  citizens  to  give  or  receive  ransom-bills.  By  a 
French  ordinance  of  1756,  privateers  were  forbidden  to  ran- 
som a vessel  until  they  had  sent  three  prizes  into  port.  The 
power  of  granting  ransom  has  been  taken  away  by  acts  of  Par- 
liament from  English  cruisers,  excej)t  in  extreme  cases  to  be 
allowed  by  the  courts  of  admiralty.  The  reason  alleged  for 
this  legislation  is,  that  captors  might  abuse  their  power  of 
ransoming  vessels  and  injure  neutral  trade. 

To  this  it  ma}'  be  added  that  ransom  is  forbidden  by  Swe- 
den in  a regulation  of  1788,  by  Denmark  in  one  of  1810,  by 
Holland  in  an  ordinance  of  1781,  by  Russia  apparently  since 
1787,  and  by  Spain,  so  far  as  neutral  vessels  are  concerned, 
since  1782.  In  France  no  neutral  ship  can  be  ransomed,  nor 
can  an  enemy’s  vessel  be  ransomed  without  a certain  authoriza- 
tion and  certain  formalities.  Our  law  permits  ransom  both  of 
hostile  and  of  neutral  vessels,  on  the  ground  that  in  both  cases 
it  is  a mere  remission  of  the  rights  of  the  captors  to  Avhat 
they  take  in  war,  so  that  every  prohibition  of  it  must  ex- 
pressly depend  on  the  regulations  of  each  particular  country. 

Hautefeuille  opposes  ransom  of  neutral  vessels  on  the  fol- 
lowing grounds  : 1.  The  seizure  of  neutral  property  ought  to 
be  pronounced  lawful  by  a decision  of  a prize-court ; hence 
neuti’als  Avould  be  injured  by  demanding  a ransom  from  them 
before  such  a decision.  To  Avhich  Gessner’s  reply  is  per- 
fectly coiiAdncing,  that  “•  the  neutral  consents  to  it,  and  no 
one  takes  from  him  the  right  of  demanding  that  his  vessel 
shall  be  seized  and  tried.  Moreover,  the  ransom  does  not 
deprive  him  of  the  eventual  benefit  of  a favorable  sentence. 
The  proceedings  follow  their  course  none  the  less,  and  if  they 
end  in  clearing  tlie  A'essel,  the  captoi’,  of  course,  must  pay  the 
ransom  back.  The  neutral,  tlien,  has  m this  case  the  advan- 


256 


RIGHTS  OF  SELF-DEFENSE 


§ 150. 


tage  of  avoiding  seizure  and  of  freelj^  continuing  his  voyage 
’.vitli  liis  cargo.”  2.  Hautefenille’s  other  objection  is,  that  by 
granting  ransom  to  neutral  vessels,  a nation  and  its  cruisers  are 
accessories,  so  to  speak,  to  their  carrying  contraband  to  the 
other  belligerent.  But  the  belligerent  Avill  be  likely  to  pro- 
vide for  his  interests  in  directions  given  to  his  vessels  of  war ; 
and,  besides,  the  ransom  does  not  permit  the  neutral  vessel, 
if  it  has  contraband  on  board,  to  take  it  to  a blockaded  poi-t. 
It  still  has  another  gauntlet  to  run.^  “Most  German  and 
French  publicists  agree  in  pronouncing  ransoms  of  neutral 
property  permitted  by  international  laAV.”  Gessner,  u.  s. 

§ 151. 

If,  according  to  the  received  right  of  war  a thing  taken  from 
Kecapture.  eueiuy  becoiucs  the  property  of  the  captor,  it 

the  ori.”inai  Height  sceiu  that,  whcu  retaken,  it  ought  to  become 
owner.  property  of  the  second  captor.  But  since  the 

captor’s  right  comes  to  him  from  the  state,  the  state  may  de- 
cide how  far  he  shall  be  rewarded,  if  at  all,  for  his  risks  and 
labor  in  retaking  what  had  belonged  to  a fellow-subject.  It 
seemed  inequitable  that  the  original  owner  should  wholly  lose 
his  right  to  what  had  been  recently  his  own,  while  the  recap- 
tor, an  inhabitant  of  the  same,  or  of  a friendly  country,  at  the 
end  of  two  acts  of  violence,  came  into  possession  of  the  same 
property.  And  yet,  policy  as  well  as  justice  should  hold  ont 
a jjrospect  of  reward  for  a recapture,  which  the  cruiser  would 
otherwise  be  apt  to  shrink  from,  and  which  brought  with  it 
its  hazards.  We  are  led,  then,  to  the  questions,  when,  and 
how  far  the  rights  of  the  original  owner  revert  to  him,  and 
to  the  right  of  salvage  or  the  premium  granted  for  recapture. 
And  as  the  return  of  property  to  its  first  owner  appears  in 
the  shape  of  the  Roman  doctrine  of  postliminy,  it  is  neces- 
sary to  explain  briefly  what  the  Roman  postliminy  was,  and 
how  it  differs  from  that  which  is  known  to  modern  interna- 
tional law'. 

1 See  Pistoye  et  Duvcrdy,  i.,  287,  Hautefeuille,  iv.,  262-264,  Gessner,  338-343, 
Phillimorc,  iii , 532. 


§151. 


AND  REDRESS  OF  INJURIES,  ETC. 


257 


By  ancient  yi<s  gentium  all  things  seized  by  the  enemy  be- 
came his  property,  and  thus  free  persons  became  jus  post- 
slaves.  The  Romans  regarded  such  a person,  if  a ^ 
captive  from  among  tliemselves,  as  suffering  capitis  deminutio, 
or  losing  his  status  of  freedom,  precisely  as  a foreigner  would 
lose  his,  if  taken  by  Romans.  Suppose  now  such  a person 
to  be  recaptured,  or  ransomed,  or  to  have  escaped,  it  would 
be  hard  to  say  what  was  his  status  on  his  return  to  Rome. 
To  remove  all  difficulty  the/M-s  postliminii'^  was  devised,  as  a 
legal  fiction,  according  to  which  he  was  treated  as  not  having 
been  away,  or  at  least  as  having  only  been  absent  from  his 
threshold,  and  all  his  lost  rights  or  rights  in  abeyance  Avere  re- 
stored to  him.  The  same  jus  Avas  extended  so  as  to  cover 
certain  kinds  of  things  captured  by  the  enemy,  namely,  slaves, 
ships  of  Avar  and  transport,  mules,  horses,  and  land,  which 
thus  returned  on  recapture  to  their  original  OAvner.  Postlim- 
iny had  no  application  to  civil  Avar,  Avhere  the  factions  Avere 
not  enemies  in  a political  sense,  nor  to  Avar  with  pirates,  be- 
cause they  Avere  robbers,  incapable  of  rights  ; but  only  to  le- 
gitimate Avar  between  two  states.  Nor  could  its  advantages 
be  open  to  a deserter  or  other  betrayer  of  his  post,  or  to  one 
Avhom  the  state  itself  had  given  up  to  the  enemy.  If  a free 
person,  taken  in  Avar,  Avas  ransomed  by  anothei’,  Avhose  tie  of 
relationship  to  the  captive  did  not  oblige  him  so  to  act,  his 
rights  seem  not  immediately  to  have  reverted  to  him  hj  jus 
postliminii  on  his  return  to  Roman  soil,  but  he  continued  in 
the  relation  to  the  ransomer  not  strictly  of  a slave,  but  of  one 
Avhose  body  could  be  held  until  that  ransom  was  paid.  By  a 
law  of  the  later  Roman  empire,  five  years’  service  was  equiv- 
alent to  this  ransom.  If  a slave  taken  by  the  enemy  Avas  thus 
ransomed,  he  remained  under  the  ransomer’s  control  until  his 
ransom  Avas  paid  by  his  former  master.  The  ransomer  within 
a certain  time  could  not  refuse  to  restore  the  slave  on  the 

1 Probably  from  post  In  the  sense  behind,  and  limen  the  threshold.  Compare 
postscenium,  postsignani.  As  post.sceninm  denotes  the  space  behind  the  scene,  so 
miglit  postliminium,  originally,  the  space  behind  the  threshold,  thence  the  fact  of 
return  behind  the  threshold  or  into  the  house. 

17 


258 


EIGHTS  OF  SELF-DEFENSE 


§ 151. 


offer  of  the  ransom  money,  and  then  the  jus  postliminii  be- 
gand 

It  must  be  regarded  as  a striking  illustration  of  the  sway 
of  Roman  law  over  the  European  mind,  that  the  lawyers  have 
taken  this  road  to  help  the  first  owner  to  his  property  after 
recapture.  For  the  application  of  the  modern  postliminy  is 
quite  different  from  that  of  the  Roman.  (1.)  As  to  person : 
freemen,  to  whose^  status  it  applied  by  Roman  law  more  than 
to  anything  else,  do  not  lose  their  status  in  modern  times  by 
captivity  in  war.  They  are  absent,  like  travelers  or  mer- 
chants, and  their  rights  and  obligations  go  on,  as  far  as  per- 
sonal presence  is  not  necessary  for  their  exercise.  It  is  true, 
indeed,  that  a prisoner  of  war  escaping  from  a vessel  in  a 
neutral  port,  is  protected  against  recapture  by  this  riglit,  as  he 
would  be  among  the  Romans.^  But  two  nations  might,  if 
they  pleased,  agree  to  give  up  such  escaped  captives  ; and  that 
this  is  not  done  may  be  best  explained  on  the  ground  that  the 
laws  of  one  country  do  not  extend  into  the  territory  of  an- 
other, and  e.specially  that  the  laws  of  a war  in  which  I have 
no  part,  ought  not  to  affect  my  friend  or  subject  within  my 
borders,  — the  principle  in  short  which  makes  express  conven- 
tions of  extradition  necessary.  And,  again,  Roman  postlim- 
iny applied  to  slaves,  but  as  slavery  is  not  sanctioned  by  the 
modern  law  of  nations  (comp.  § 74),  it  can  obtain  no  appli- 
cation in  regard  to  them. 

As  for  the  private  relations  of  returned  captives,  the  Roman 
law  held  marriage  to  cease  with  captivity,  which  is  abhorrent 
to  Christian  doctrine.  Public  personal  relations  by  modern 
law  continue  after  captivity,  but  the  laws  of  each  state  de- 

1 I follow  csjieciall}'  E.  F.  Hasc,  Das  Jus  Postliminii  und  die  Fictio  Leijis  Cornelice, 
Halle,  1851. 

2 Paulus,  in  19,  § .3,  Dip;,  xlix.,  15.  “ Si  in  civitatem  sociain  aniicanive,  aut  ad 

regem  sociuin  vel  aiiiieum  voneiit,  statim  posiliminio  redis.se  videtur;  quia  ibi 
priniiini  nomine  ])ublieo  tutus  < sse  ineipit.” — Here  not  simply  a state  or  king 
ii.'lied  in  icar,  but  any  non-hostile,  friendly,  or,  as  we  should  sa}',  neutral  power  is 
included.  This  is  denied  by  Grotius,  iii.,  9,  § 2,  and  Bynkershoek,  Qumst.  J.  P.,  i., 
15,  but  such  a sense  given  to  amicus  would  restrict  the  postliminy  to  times  of  war, 
whereas  Paulus  is  speaking  generally  of  its  existence  in  war  or  peace.  Corap 
Hase,  p.  58. 


151. 


AND  KEDRESS  OF  INJURIES,  ETC. 


259 


termine  liow  far  their  advantages,  like  salary  during  absence, 
for  example,  can  be  claimed  on  return  to  one’s  own  country. 
The  Roman  law  refused  to  admit  such  claims.^  (2.)  As  to 
the  limit  of  time  Avithin  Avhich  i\\Q  jus  poistliininii  takes  effect, 
Ave  are  not  aAA'are  that  Roman  law  contains  any  definition. 
Modern  usage  gives  complete  possession  of  booty  to  the  enemy 
on  land,  after  he  has  held  it  for  tAventy-four  hours,^  so  that 
the  former  OAvner  cannot  claim  it  again  from  the  purchaser ; 
the  reason  for  Avhich  limit  is  the  difficulty  of  identifying  such 
articles  after  a lapse  of  time.  On  the  other  hand,  land  is  re- 
stored to  its  original  OAvner,  until  peace  or  destruction  of  na- 
tional existence  has  transferred  soAmreignty  to  a conqueror. 
(3.)  By  moderu  law,  captured  ships  Avith  the  goods  on  board, 
carried  iufra  prcesidia  by  the  enemy  and  condemned,  become 
absolutely  his,  so  that,  if  they  are  afterAvards  recaptured  or  re- 
purchased by  a neutral,  the  former  OAvner  has  nothing  to  do 
Avith  them  : their  connection  Avith  him  has  Avholly  ceased.  It 
is  only  in  the  interval  betAveen  capture  and  complete  possession 
that  the  right  of  postliminy  continues.  This  Avas  otherAvise 
by  Roman  laAV ; the  right  affected  all  those  kinds  of  things 
Avhich  AA'ere  under  its  operation  at  all,  Avhen  they  came  into 
the  poAver  of  the  enemy,  and  the  more,  the  more  clearly  they 
had  passed  into  his  dominium.^  (4.)  As  to  limit  of  place, 
modern  postliminy  takes  effect  only  Avithin  the  territory  of  the 
captor  or  his  ally,  Avith  the  single  exception  already  mentioned 
of  captives  escaping  ashore  in  a neutral  port.  But  the  Ro- 
man, it  seems  most  probable,  took  effect  Avithin  the  borders 
of  any  friendly  nation. 

A nation  may  make  Avhat  laAvs  it  pleases  in  regard  to  the 
recapture  of  the  goods  of  one  of  its  subjects  by  another,  hut  is 
bound  to  folloAV  the  jus  postliminii  in  cases  affecting  the  prop- 
erty of  neutrals. 

1 Ileffter,  § 190. 

^ The  Romans  had  a practice  often  mentioned  by  Livy  (as  v.,  16),  of  bringing 
back  the  booty,  alloAving  former  owners  to  take  their  property  back,  and  selling 
the  rest.  Two,  three,  or  thirty  days  were  allowed  for  this  reclamation. 

3 Bynkersh.,  Queest.  J.  P.,  i.,  5,  denies  that  there  is  any  postliminy  when  a vessel 
has  not  been  brought  into  port.  “ Qui  sciunt  quid  postliminium  sit,  sciunt  quoque 


260 


RIGHTS  OF  SELF-DEFENSE 


§ 152. 


§ 152. 

The  laws  of  some  states  hold  out  special  rewards  to  en- 
courage the  capture  of  vessels,  especially  of  commis- 

Kewards  for  . f i r i • • i i i 

capture  and  sioiied  vesscls,  of  theii’  enemies,  buch  is  the  head- 
ture.  money  of  five  pounds,  due  under  a section  of  the 

StllVclgO. 

British  Prize  Act,  to  all  on  board  an  armed  ves- 
sel acting  under  public  authority,  for  every  man  on  board 
of  a similar  captured  vessel  who  was  living  at  the  beginning 
of  the  engagement.  Such,  too  in  a sense,  are  the  advantages 
given  to  other  vessels  which  have  assisted  the  capturing  one, 
or  started  to  render  assistance,^  or  even  have  been  near  enough 
to  intimidate  the  enemy.  But  the  claim  for  compensation  is 
far  more  reasonable  when  the  crew  of  one  vessel  have  saved 
another  and  its  goods  from  pirates,  lawful  enemies,  or  perils  of 
the  seas.  This  is  called  salvage,  and  answers  to  the  claim 
for  the  ransom  of  persons  which  the  laws  of  various  nations 
have  allowed.  The  legislation  of  a particular  state  may  with- 
hold salvage  from  its  citizens  or  subjects,  but  cannot  deprive 
a neutral  or  an  ally  of  the  exercise  of  this  right.  In  such 
cases  national  law  Avill  decide  as  between  vessels  of  the  same 
country  ; and  treaty,  as  between  vessels  of  allied  powers.  See 
the  convention  of  1854  between  France  and  Great  Britain  on 
joint  capture,  in  Lushington’s  “ Manual,”  p.  118. 

The  laws  of  different  nations  vary  in  the  amount  of  reward 
Amount  of  wlficli  they  assign  to  the  recaptors  of  vessels.  In  re- 
saivagc.  gard  to  the  salvage  to  be  paid  to  our  recaptors  by 
the  owners  of  foreign  vessels  and  goods,  the  laAV  of  the  United 
States  adopts  the  principle  of  reciprocity,  measuring  the 
amount  by  that  Avhich  is  paid  by  the  law  of  the  state  to  which 
the  vessel  belongs.  In  regard  to  the  amount  to  be  paid  by 
citizens  or  resident  foreigners,  the  laAV  contains  various  provis- 
ions, of  from  one  half  to  one  Uvelfth  of  the  value  ; more  being 

non  esse  nisi  cjus,  quod  in  liostis  dominium  transierat.  Dicendum  erat  [/.  e.,  in- 
stead of  calling  it  by  this  name,]  ante  deductioncm  in  portum,  res  non  esse  factas 
hostiuin,  sed  remansisse  prioris  domini,  recuperatas  igitur  ei  cedere  et  non  rc- 
ciiperatni'i.” 

1 Wildman,  ii.,  321-326. 


§ 153. 


AND  KEDRESS  OE’  INJURIES,  ETC. 


261 


granted  for  the  salvage  of  an  armed  vessel  recaptured  than 
of  an  unarmed,  and  more  to  a private  vessel  recapturing  than 
to  a public  armed  vessel.  In  no  case  is  salvage  allowed  if 
the  recapture  occurs  after  condemnation  by  a competent  au- 
thority, since  the  property  is  regarded  as  having  passed  over 
from  the  original  owner  to  the  captor.  Noi-  is  a creAV  of  a. 
public  vessel  entitled  to  salvage  for  the  recaptui-e  of  another 
public  vessel  of  . the  same  nationality.  The  provisions  of  the 
law  of  the  most  important  nations  are  given  at  length  by  Dr. 
Wheaton.  (“  Elements,”  iv.,  2,  § 367,  § 384.) 

§153. 

“ Recte  dixit  Grotius,”  ^ says  Bynkershoek,  “ postliminium 
etiam  in  iutegris  populis  locum  habere,  ut,  inquit,  ^ ^ 
qui  liberi  fuerunt,  suam  recipiant  libertatem,  si  forte  temporary 

• ■ • 1 ^ T conquests. 

eos  VIS  sociorum  eximat  hostili  imperio.  (“  Qucest.  J. 

P.,”  i.,  16.)  A state,  after  temporary  occupation,  or  after  the 
short-lived  government  of  a conqueror,  may  be  restored  to  its 
]n-istine  condition.  Such  was  the  case  rvith  Holland,  part  of 
Germany,  and  Sj)ain  in  the  times  of  Napoleon.  The  interrup- 
tion of  former  rights  and  the  actions  of  the  conqueror  give 
rise  to  several  perplexing  questions  in  regard  to  the  condition 
of  such  a country  ; and  as  occupation  is  separated  by  no  very 
distinct  limits  from  “ debellation  ” or  complete  conquest,  or 
at  least  as  the  occupier  sometimes  acts  the  conqueror,  here- 
by, perhaps,  the  perplexity  is  increased.  We  follow  Heffter 
(§  188)  principally,  in  our  brief  representation  of  the  rights 
and  obligations  of  a state  restored  in  this  postliminary  way. 
(Comp.  Philh,  iii.,  812  et  seq.  of  ed.  2.) 

Such  restoration  follows,  as  a matter  of  course,  whenever 
the  conquering  occupant  by  treaty  abandons  his  conquests,  or 
is  driv'en  out,  Avhether  by  the  inhabitants  or  by  an  ally.  But 
if  a third  party  dispossesses  the  conqueror,  the  state  cannot, 
according  to  international  justice,  recover  its  independent  ex- 
istence Avithout  his  consent,  although  this  may  be  demanded 
by  equity  or  humanity. 


1 III.,  9,  § 9. 


262 


RIGHTS  OF  SELF-DEFENSE 


§ 153. 


If  mere  occupation,  Avithout  the  assumption  of  the  attxi- 
hutes  of  government,  had  taken  place,  everything  goes  back  to 
the  old  state.  The  restored  regime  can  claim  even  from  allies 
and  neutrals  property  Avhich  had  passed  over  to  them  from 
the  occupier,  so  far  as  the  right  of  Avar  gaA^e  him  no  power  to 
dispose  of  them. 

If  the  occupant  conqueror  set  up  and  carried  on  a neAV  gov- 
ernment, then  — 

1.  None  of  his  changes  in  the  earlier  constitution,  no  mode 
of  administration,  officer  or  laAAy  has  any  claim  to  permanence. 

2.  No  retroactiA'e  exercise  of  the  poAvers  of  government, 
affecting  subjects  or  third  persons,  rightfully  belongs  to  the 
restored  regime,  so  far  as  relations  are  concerned  Avhich  per- 
tained to  the  period  of  occupation.  Thus  taxes  for  the  in- 
terim cannot  properly  be  collected,  on  the  ground  that  they 
Avould  have  been  due  to  the  old  government  if  the  occupation 
had  not  taken  place.  For  the  rights  of  soA'ereignty,  so  far  as 
they  pertained  to  the  old  regime,  had  in  fact  passed  over  into 
the  hands  of  the  neAV. 

3.  WhateA'er  the  government  by  conquest  did  in  the  legiti- 
mate exercise  of  political  poAA'er  is  valid.  The  neAV  gOA^ern- 
ment  succeeds  to  it  in  its  acquisitions  and  obligations,  and  can- 
not set  aside  its  doings  on  the  ground  that  it  had  no  right  to 
exist.  Thus  Avhat  Avas  due  to  the  usurping  government  in 
back-standing  taxes,  Axdiat  it  acquii’ed  bj^  treaty  or  otherAvise, 
belongs  to  its  successor.  On  the  other  hand,  if  that  govern- 
ment aisposed  of  state  property,  or  contracted  state  debts,  its 
proceedings  here  also  are  valid,  inasmuch  as  it  represented  the 
state.^  This  has  been  denied,  but  not  Avith  justice,  except  in 

1 A noted  case  is  tliat  of  certain  proprietors  in  Hcsse-Cassel,  which  after  its 
conquest  h}'  Napoleon  became  in  1807  a part  of  the  Kingdom  of  Westphalia,  and 
was  recognized  by  treaty  as  such,  for  some  years.  The  King  of  Westphalia  hav- 
ing sold  some  crown  lands  to  subjects,  the  Elector  on  his  restoration  refused  to 
acknowledge  the  sale,  and  seized  the  lands  from  his  own  subjects.  They  tried  to 
resist  his  claims,  but  he  refused  to  indemnify  them,  to  submit  his  title  to  the 
courts  or  to  consent  to  arbitration.  This,  no  doubt,  was  high-handed  injustice. 

Another  case  of  the  same  time  and  territory  was  tliis  : The  Count  von  Hahn 
had  compounded  with  the  King  of  Westphalia  for  a debt  due  to  the  Elector,  which 
had  been  secured  by  mortgage  on  his  estates.  On  his  restoration  the  Elector  re- 


§ 154. 


AND  EEDRESS  OF  INJURIES,  ETC. 


263 


those  extreme  cases,  where  the  temporary  goyernment  had 
alienated  property  or  borrowed  money  not  in  the  exercise  of 
political  authority  nor  for  public  purj^oses,  but  with  the  spirit 
of  a plunderer.  (Comp.  §§  38,  104,  beginning.) 


Section  V.  — Of  the  Suspension  and  the  Termination  of  War, 
especially  of  Truce  and  of  Peace. 

§ 154. 

The  possibility  of  intercourse  in  war  depends  on  the  con- 
fidence which  the  belligerents  repose  in  each  other’s  intercourse 
good  faith,  and  this  confidence,  on  the  unchangeable  jor  the  pm- 
1 sacredness  of  truth.  Even  Bynkershoek,  who  allows 

every  kind  of  violence  and  every  kind  of  craft,  has  to  say,  in 
words  already  cited,  “ ego  quidem  omnem  dolum  permitto,  sola 
perfidia  excepta.”  (“  Qurest.  J.  P.,”  i.,  1.)  That  faith  should 
be  kept  with  heretics  has  been  denied,  but  no  one  has  main- 
tained that  it  is  not  to  be  kept  with  enemies.^ 

Such  being  the  undoubted  principle  of  obligation  in  war  as 
well  as  in  peace,  Avar  is  enabled  to  pnt  on  a milder  form  for 
that  -reason,  and  to  interrupt  its  violence  for  a time  either  to- 
Avards  particular  persons  or  entirely.  Among  these  intermis- 
sions of  war  are  to  be  enumerated  : — 

1.  The  commercia  belli,  to  Avhich  Ave  have  already  referred 
(§  140),  and  of  one  of  Avhich,  ransom-contracts,  Ave.have  s[ioken 
at  large  (§  150).  Some  conventions  in  war  have  a lasting  op- 
eration, as  determining  how  the  Avar  shall  be  cairied  on,  Avhat 
kinds  of  arms  shall  be  accounted  unlaAvful,  hoAV  prisoners  shall 
be  treated  and  the  like,  or  as  placing  certain  persons  or  places 
in  a relation  of  neutrality  to  both  parties.  Others  are  transi- 
tory and  special,  as  contracts  relating  to  requisitions,  to  ransom, 

yarded  the  debt  as  still  due,  and  proceeded  against  the  estates.  It  thus  came  be- 
fore the  courts,  and  after  several  trials  and  appeals  the  payment  to  the  King  of 
AA’estphalia  was  decided  to  be  a full  discharge  of  the  debt.  Dana  on  Wheaton, 
t-o'.e  169.  — T.  S. 

1 Comp.  Ilelfter,  § 141. 


264 


RIGHTS  OF  SELF-DEFENSE 


§ 154, 


to  exchange  of  prisoners,  and  to  capitulations.  Prisoners  are 
generally  exchanged  within  the  same  rank  man  for  man,  and 
a sum  of  money  or  other  equivalent  is  paid  for  an  excess  of 
them  on  one  side.  Capitulations  formerly  were  often  made  on 
the  condition  of  not  being  relieved  by  a certain  day.  They  ai’e 
usually  formal  agreements  in  writing  between  the  officers  in 
command  on  both  sides,  who,  unless  the  power  is  taken  from 
them  with  the  knowledge  of  the  other  party,  are  empowered 
to  make  all  such  arrangements. 

§ 155. 

2.  Next  to  these  may  be  classed  permissions  given  to  indi- 
2.  Licenses  viduals  wliicli  suspeiicl  the  operations  of  Avar,  as  far 
Safe  con-  tlieii’  pei’sons  are  concerned,  for  the  purpose  of 
ducts.  enabling  them  to  perform  a AAmrk  of  peace.  These 
modes  of  plighting  faith  are  not  necessary  for  the  conduct  of 
the  Avar. 

One  of  these  is  licenses  to  trade  Avith  the  enemy.  A license 
to  trade  Avith  the  enemy,  being  an  exception  to  the  ordinary 
rules  of  Avar,  is  to  be  strictly  interpreted,  and  yet,  Avhere  there 
has  been  evident  good  faith  in  folloAving  it,  slight  deviations 
Avill  not  be  noticed.  If  the  person,  the  poid  or  town,  the  kind 
and  quality  of  the  goods,  the  limits  of  time,  are  prescribed  in 
the  license,  departures  from  its  terms,  Avith  the  exception  of 
unavoidable  delay,  Avill  make  it  void.  Thus  it  has  been  de- 
cided that  a license'  to  neutral  vessels  becomes  void  Avhen  hos- 
tile vessels  or  those  of  the  country  giving  the  license  are  sub- 
stituted for  them  ; that  a license  to  import  Avill  not  cover  re- 
exportation ; that  a license  prescribing  a certain  course  of 
navigation  is  avoided  by  voluntary  departure  from  such  course ; 
that  a license  to  sail  in  ballast  is  forfeited  by  carrying  part  of 
a cargo,  or  to  impoi’t  certain  articles  Asdll  not  protect  other 
articles,  not  named,  although  destined  for  a neutral  port,  or 
again  to  proceed  to  a certain  port  is  Autiated  by  calling  at  an 
interdicted  port  for  orders.  A general  license  to  sail  to  any 
port  Avill  not  include  a blockaded  one,  Avhich  is  shut  by  highci' 
laAVS  of  Avar.  A license  although  it  has  expired  will  pi’otect  in 


§ 156. 


AND  REDRESS  OF  INJURIES,  ETC. 


265 


case  of  unavoidable  hindrances.  No  consul  and.  no  admiral, 
according  to  English  doctrine,  can  give  a license,  which  is  a 
high  act  of  sovereignty,  without  authority  of  the  government.^ 
A license  protects  against  all  cruisers  of  the  enemy,  but  not 
against  any  action  of  the  country  to  which  the  licensed  person 
or  vessel  pertains.  (Comp.  § 123,  end.) 

Passports  and  safeguards,  or  safe  conducts,  are  letters  of 
protection,  with  or  without  an  escort,  by  which  the  ^ ^ ^ 

person  of  an  enemy  is  rendered  inviolable.  These  and  pass- 

, ports. 

may  be  given  in  order  to  carry  on  the  peculiar  com- 
merce of  war,  or  for  reasons  which  have  no  relation  to  it,  which 
terminate  in  the  person  himself.  As,  like  licenses,  they  are 
exceptions  to  the  non-intercourse  of  war,  they  are  stricti  j uris, 
as  far  as  relates  to  the  person,  the  time  of  his  sojourn,  his  route 
and  residence,  and  in  a degree  to  his  effects  and  attendants. 
If  he  remain  beyond  the  j^rescribed  time  with  no  inevitable 
necessity  from  illness  or  other  cause,  he  can  be  treated  as  a 
captive.  If  he  is  discovered  in  intrigues  his  passport  is  vitiated. 
If  he  acts  as  a spy,  of  course  he  forfeits  the  right  of  protection; 
for  he  is  thus  committing  an  act  of  hostility,  whether  the  offi- 
cer who  gave  him  tlie  passport  is  privy  to  his  designs  or  not. 
Arnold’s  pass  could  be  of  no  avail  to  Andr^,  when  once  his 
true  character  was  brought  to  light. 

§156. 

3.  A temporary  suspension  of  the  operations  of  war  at  one 
or  more  places  is  called  a truce  or  armistice.^  A truce  qj. 
may  be  special,  referring  to  operations  before  a for- 
tress  or  in  a district,  or  between  certain  detachments  of  armies, 
or  general,  implying  a suspension  of  hostilities  in  all  j^laces. 

1 These  and  m.iny  more  particular  cases  touching  the  interpretation  of  licenses 
by  the  English  courts  may  be  found  in  Wildmnn,  ii.,  24.5-269. 

2 Truce,  in  mediaival  Latin  treurja,  in  Italian  Iregua,  properly’  denotes,  according 
to  Diet';!,  secwit//,  pledge,  and  is  the  same  with  Gothic  In'ggva,  old  German  Iriuwa, 
Frencdi  treve.  In  old  French  innue,  in  Anglo-Norman  trea'e,  has  this  sense.  Can 
truce  (trcwis,  trewse)  be  a ])lural,  like  inducioe?  It  .seems  that  les  trues  was  u.sed 
in  old  French.  Armistice,  not  used  in  Latin,  but  formed  analogically,  is,  we  be- 
lieve, quite  a modern  word. 


266 


EIGHTS  OF  SELF-DEFENSE 


§ 156. 


A general  truce  can  be  made  only  by  tlie  sovereign  power  or 
its  agents,  specially  empowered  for  this  purpose.  A special  or 
partial  truce  may  be  concluded  according  to  the  usage  of  na- 
tions by  a military  officer,  even  by  a subordinate  one  within 
bis  district.  This  usage  rests  on  the  consideration  that  both 
policy  and  humanity  require  that  such  a discretionaiy  power 
should  be  lodged  in  those  who,  being  on  the  spot,  can  best  un- 
derstand the  exigencies  of  the  case.  If  an  officer  should  be  re- 
stricted in  the  use  of  this  power  contrary  to  usage  and  yet 
should  exercise  it,  his  agreement,  at  least  if  not  corruiatly 
made,  would  be  binding  on  his  sovereign,  provided  that  the 
other  party  knew  nothing  of  the  restriction.  For  that  party 
had  a right  to  infer  from  prevalent  usage  and  the  nature  of 
the  command  intrusted  to  him  that  he  had  this  power. 


§ 157. 

A truce  is  binding  on  the  parties  to  it  from  the  time  wlien 
they  have  aOTeed  to  its  terms,  but  on  private  persons 

Time  when  .°  . n-  ^ 

a truce  be-  froiu  the  time  when  intelligence  of  it  can  have  reason- 

gins.  , , , • . 

ably  reached  them.  For  injuries  inflicted  in  the  in- 
terval  the  sovereign  of  the  injiirer  is  responsible.^  When  a 
general  suspension  of  arms  is  agreed  upon,  it  is  not  unusual 
to  provide  that  it  shall  take  effect  in  different  portions  of  the 
theatre  of  war  or  parts  of  the  world  at  different  times,  so  as  to 
afford  opportunity  to  give  notice  of  it  to  all  who  are  concerned 
in,  or  whose  business  is  affected  by,  the  war. 

A truce  being  in  itself  a mere  negation  of  hostilities,  it  is  a 
little  difficult  to  say  what  may,  or  may  not,  be  done 

What  can  be  , , , ^ • c 

clone  ilia  duriiiG:  its  coiitinuaiice.  ilie  following'  rule,  if  we  are 
not  deceived,  expresses  the  views  of  most  text-writers : 
that  the  state  in  which  things  were  before  the  truce  is  so  far 
to  be  maintained  that  nothing  can  be  done  to  the  prejudice  of 
either  party  by  the  other,  which  could  have  been  prevented  in 
war,  but  which  the  truce  gives  the  power  of  doing.  But  may 
a besieged  place,  during  a truce,  repair  its  walls  and  construct 
iiPAv  works?  This,  which  Wheaton  after  Vattel  denies,  is  af- 

1 Heffter,  § 142. 


§ 157. 


AND  EEDRESS  OF  INJURIES,  ETC. 


267 


firmed  by  Heffter  (u.  3.),  after  Grotius  and  Puffendorf.^  Heff- 
ter  also  declares  it  to  be  unquestioned  that  the  besieger  cannot 
continue  his  works  of  siege,  thus  giving  to  the  besieged  in  any 
partial  truce  the  advantage  over  his  foe.  The  question  is 
Avhether  to  strengthen  works  of  offense  or  of  defense  is  an  act 
of  hostility,  and  is  consistent  with  a promise  to  suspend  hos- 
tilities. It  would  appear  that  neither  party  can  act  thus  in 
good  faith,  unless  it  can  be  shown  that  the  usages  of  war  have 
restricted  the  meaning  of  truce  to  the  suspension  of  certain 
operations.  The  rule  then  laid  down  by  Vattel,  and  which  he 
is  obliged  to  qualify  by  several  others,  namely,  that  each  may 
do  among  themselves,  that  is,  within  their  own  territories  or 
where  they  are  respectively  masters,  Avhat  they  Avould  have  the 
right  to  do  in  peace,  is  true  only  of  the  general  operations  of 
Avar.  A j^OAver  may  use  the  interval  in  collecting  its  forces, 
strengthening  its  Avorks  Avhich  are  not  attacked,  and  the  like. 
But,  Avhen  Ave  come  to  the  case  of  besieged  towns,  the  question 
is  of  Avhat  are  the  two  parties  masters,  and  various  quibbles 
might  be  devised  to  allow  either  of  them  to  do  Avhat  he  pleased. 
The  governor  of  a toAvn,  says  Vattel,  may  not  repair  breaches 
or  construct  Avorks  Avhich  the  artillery  of  the  enemy  would 
render  it  dangerous  to  labor  upon  during  actual  siege,  but  he 
may  raise  up  neAV  works  or  strengthen  existing  ones  to  Avhich 
the  fire  or  attacks  of  the  enemy  Avere  no  obstacle.  Why,  if  he 
may  do  this,  may  not  the  besiegers  strengthen  their  AA'orks 
Avhich  are  not  exposed  to  the  guns  of  the  fortress?  Much  the 
same  may  be  said  of  revictualing  besieged  places.  The  garri- 
son cannot  rightfully  make  use  of  the  truce  in  ways  Avhich  the 
besiegers  could  haA^e  prevented,  if  the  siege  had  gone  on  in  its 
course.  In  the  case  of  besieged  towns,  arrangements  are  some- 
times made  allowing  a certain  amount  of  provisions  to  enter 
them.  Calvo  would  distino-uish  between  a besieged  town  and 
an  army  blocked  up  outside  of  a town.  In  the  last  case  but 
for  the  truce  the  army  could  have  made  use  of  the  rights  of 
war  to  help  themselves  to  provisions,  and  the  revictualing 

1 Grotius,  iii.,  21,  § 7;  Puffeml.,  viii,,  7,  § 10.  Cocceiuson  Grot.,  u.  s.,  § 10,  denies 
It.  So  Vattel,  iii.,  16,  § 247  ; Wheaton,  Elements,  iv.,  2,  § 22. 


268 


RIGHTS  OF  SELF-DEFENSE 


§ 157. 


would  change  nothing  in  the  relative  position  of  the  adver- 
saries. In  a proposed  armistice  in  1870,  the  neutral  powers 
urged  on  Prussia  to  allow  a revictualing  of  Paris  then  besieged, 
proportional  to  the  length  of  tlie  truce  ; but  these  terms  Avere 
not  accepted,  and  so  the  truce  fell  through.  (Calvo,  ii.,  § 980.) 

When  a truce  is  concluded  for  a specified  time,  no  notice 
Ena  of  a is  necessary  of  the  recommencement  of  hostilities.^ 
truce.  Every  one  Avho  lingers  freely  in  the  enemy’s  country 
or  within  his  lines,  after  this  date,  is  obnoxious  to  the  laAv  of 
Avar.  But  forced  delay  on  account  of  illness,  or  other  impera- 
tive reason,  Avould  exempt  such  a one  from  harsh  treatment. 


§ 158. 

A peace  differs  not  from  a truce  essentially  in  the  length  of 
its  contemplated  duration,  for  there  may  be  very  long 
what?  armistices  and  a state  of  peace  continuing  only  a defi- 
nite number  of  years.  Tlie  ancients  often  concluded  treaties 
of  peace  Avhich  Avere  to  expire  after  a certain  time : thus  one  of 
the  oldest  monuments  of  the  Greek  language  contains  a treaty 
of  alliance  for  a century  betAveen  Elis  and  a toAvn  of  Arcadia  ; 
the  Acarnanians  concluded  a treaty  of  peace  and  alliance  for 
the  same  number  of  years  ; and  a thirty  years’  peace  betAveen 
Athens  and  Sparta  Avas  not  half  finished  Avhen  the  Pelopon- 
nesian Avar  broke  out.  But  Avhile  an  armistice  is  an  interval 
in  AA'ar  and  supposes  a return  to  it,  a peace  is  a return  to  a 
state  of  amity  and  intercourse,  implying  no  intention  to  re- 
commence hostilities.  An  armistice,  again,  leaAms  the  ques- 
tions of  the  Avar  unsettled,  but  a peace  implies  in  its  terms 
that  redress  of  Avrongs  has  been  obtained,  or  that  the  inten- 
tion is  renounced  of  seeking  to  obtain  it. 

The  conclusion  of  a peace  being  one  of  the  most  important 
acts  of  sovereignty,  it  is  natur’ally  carried  on  Avith  all 

T^e,^fies  of  , . . ° i i 

peace  in  the  foriualities  with  Avhich  the  most  solemn  treaties 

g6DCrfll«  , • 

of  other  kinds  are  adjusted.  Sometimes  the  general 


1 The  Romans  gave  such  notice  to  the  yejentes  (Livy,  iv.,  30)  by  the  iisiip.l 
ceremony.  (§  120.)  But  they  seem  to  have  rarely  been  at  peace  with  the  Etruscan 
states,  truce  taking  its  place,  and  so  adopting  its  ceremonies. 


§ 158. 


AND  REDEESS  OF  INJURIES,  ETC. 


269 


basis  on  which  the  two  parties  will  consent  to  be  at  peace  is 
laid  down  long  before  the  details  are  arranged.  The  first 
agreements  are  called  preliminaries,  and  a peace  at  this  stage 
is  a preliminary  peace  in  contrast  Avith  the  definitive  peace. 
The  preliminary  peace  is  binding  from  the  time  it  is  signed, 
although  its  provisions  may  be  altered,  by  mutual  consent,  be- 
fore the  final  negotiations  are  completed.  As  examples  of 
such  preliminary  treaties,  Ave  may  mention  the  treaty  of  Vi- 
enna, in  1735;  the  peace  of  Breslau,  of  June  11,  1742;  that 
of  Aix-la-Chapelle,  of  April  30,  1748;  that  of  Paris,  betAveen 
England  and  the  United  States,  NoA'ember  30,  1782 ; and  that 
of  Versailles,  betAveen  Great  Britain  on  the  one  part,  and 
Fi’ance  and  Spain  on  the  other,  January  20,  1783.  (Append, 
ii.,  under  the  years.) 

Sometimes  after  a treaty  has  been  draAvri  up,  separate  arti- 
cles are  added,  Avhich  are  declared  to  be  as  binding  as  the 
treaty  itself.  These  articles  may  be  public  or  secret,  the  latter 
being  kept  from  the  world  on  account  of  their  nature  or  the 
circumstances  of  the  parties,  although  generally  unearthed  by 
foreign  courts.  When  several  powers  unite  in  a treaty  of 
peace,  it  is  done  either  by  the  union  of  all  as  principals  in  one 
treaty ; or  by  separate  treaties  of  each  Avith  his  enemy,  in 
which  case  there  is  no  common  obligation,  unless  these  trea- 
ties are  made  common  by  an  express  agreement ; or,  finally,  a 
poAver  becomes  an  accessory  to  a treaty  already  made,  thus 
taking  on  itself  the  rights  and  obligations  of  a principal.^ 

“ In  a treaty  of  peace,  also,  the  interests  of  powers  can  be 
included  Avhich  took  no  direct  part  in  the  Avar,  but  Avere  either 
auxiliaries,  or  at  least  had  some  interest  or  other  in  the  Avar 
or  the  peace.  It  may  be  (1)  That  one  of  the  principal  con- 
tracting poAvers  stipulates  something  in  their  favor,  Avhether 
by  comprehending  them  in  the  treaty,  — so  that  the  peace 
and  amity  shall  extend  to  them  Avithout  thereby  rendering 
them  principal  contracting  poAvers,  — or  by  inserting  a par- 
ticular point  in  their  favor ; in  Avhich  case  it  is  not  necessary 
that  they  formally  signify  their  acceptance.  Or  (2)  To  the 

1 De  Martens,  § 336. 


270 


RIGHTS  OF  SELF-DEFENSE 


§ 158. 


treaty  may  be  added  conventions  concluded  Avitli  or  between 
such  states,  which  conventions  are  declared  to  be  parts  of  the 
principal  document.  Or  (3)  third  powers  may  be  invited 
to  accede,  either  with  a view  to  obtain  their  consent  or  to  do 
them  honor.  And,  on  the  other  hand,  sometimes  third  pow- 
ers protest  formally  against  a treaty  of  peace,  or  against  one 
or  more  of  its  articles,  and  hand  over  such  act  of  protestation 
to  the  principal  contracting  powers.”^  Thus  the  Pope  pro- 
tested against  the  peace  of  Westphalia,  and  Avith  the  King  of 
Spain  against  the  final  act  of  the  Congress  of  Vienna. 

Every  nation  has  a right  to  employ  its  own  language  in 
treaties,  Avhether  of  peace,  or  made  for  any  other  purpose.  The 
Latin  AAms  the  language  chiefly  employed  in  treaties  until  the 
eighteenth  century.  The  treaties  of  Westphalia,  for  instance, 
of  Nymwegen,  of  Ryswick,  and,  in  the  next  century,  of  Utrecht 
and  Rastadt,  Avere  composed  in  it.  The  communications  of 
Turkey  Avith  European  jDOAvers  are  generally  Avritten  in  Turk- 
ish, but  Avith  a Latin  or  French  translation  accompanying  them. 
The  joreAmiling  language  of  diplomacy  in  the  eighteenth  cen- 
tury, and  since,  has  been  the  French,  of  the  use  of  AAdiich  be- 
tween the  states  of  the  German  Empire  the  peace  of  Bres- 
lau, in  1742,  is  said  to  afford  the  first  example.  But  of  late 
the  German  poAvers  use  their  OAvn  language  more  than  for- 
merly in  their  treaties  Avith  one  another.  England  and  the 
United  States  naturally  employ  their  common  tongue  in  inter- 
course Avith  one  another,  and  have  been  more  or  less  in  the 
practice  of  making  use  of  both  English  and  French  in  treaties 
Avith  other  nations  ; but  this  practice  has  its  inconveniences,  for 
disputes  can  easily  arise  Avhere  tAvo  contemporary  documents 
of  equiil  authority  differ,  as  Avill  be  apt  to  be  the  case,  in  their 
shades  of  thought.  The  original  of  the  treaty  of  1774  be- 
tAA-een  Turkey  and  Russia  is  in  Italian.  In  several  treaties  ex- 
pressed in  French,  a protest  is  inserted  that  the  use  of  this 
language  shall  not  be  regarded  as  a precedent  for  the  future. 
Such  is  the  case  Avith  the  treaty  of  Aix-la-Chapelle  (1748), 
that  of  Paris  (17G3),  and  the  final  act  of  the  Congress  of 

^ From  De  Martens,  u.  s. 


§ 160. 


AND  REDRESS  OF  INJURIES,  ETC. 


271 


Vienna  in  1815.  Our  treaty  of  alliance  with  France  (1778), 
and  the  treaty  of  cession  of  Louisiana  (1803),  contain  each  a 
declaration  that,  although  the  treaty  has  been  Avritten  in  both 
French  and  English,  the  French  copy  is  the  original. 

§ 159. 

The  same  thing  is  true  of  treaties  of  peace  as  of  all  other 
conventions,  that  they  are  of  no  validity  where  the  Restrictions 
government  exceeds  its  constitutional  powers  in  male-  power  to 
ing  them.  (Comp.  § 103.)  Besides  this  there  is  a 
moral  restriction,  where  nations  have  been  allies  in  war.  If  a 
treaty  of  alliance  requires  the  parties  to  it  to  cooperate  in  war 
until  a certain  end  is  gained,  nothing  but  an  extreme  necessity, 
such  as  the  hopelessness  of  future  exertion,  allows  one  of  the 
parties  to  make  a sejoiirate  peace  with  the  common  enemy. 
Even  if  the  terms  of  alliance  for  the  purposes  of  Avar  are  less 
definite,  it  is  dishonorable  for  an  ally,  above  all  for  a principal 
party,  to  desert  his  confederates  and  leaA’e  them  at  the  mercy 
of  the  foe.  Allies  may  make  each  his  own  peace,  and  obtain 
special  concessions,  but  they  are  bound  in  good  faith  to  act 
together,  and  to  secure  one  another,  as  far  as  possible,  against 
a power  Avhich  may  be  stronger  than  any  of  them  separately.^ 

§ 160. 

Although  a peace  is  a return  to  a state  of  amity,  and,  among 
civilized  nations,  of  intercourse,  the  conditions  on 
which  intercourse  IS  conducted  may  not  be  the  same  treaties  of 

pCJlCG. 

as  before  the  Avar.  If  a treaty  contained  no  other 
agreement  than  that  there  slioidd  be  peace  betAveen  the  par- 
ties, there  AA*ould  be  a fair  presumption  that  everything  Avas 
settled  again  on  its  old  basis,  the  cause  of  AA-ar  alone  being 
still  unsettled.  But  treaties  usually  define  aneAV  the  terms  of 
intercourse.  The  general  pi  inciples  Avhich  govern  the  reneAval 
of  intercourse  cannot  be  laid  down,  until  it  is  first  knoAAUi 
Avhat  tlie  effect  of  a Avar  is  upon  jireA'ious  treaties. 

War  suspends  all  intercour.se,  political,  social,  commercial, 

1 Vattel,  iv.,  2,  § 15,  16. 


272 


RIGHTS  OF  SELF-DEFENSE 


§ 160. 


except  so  far  as  intercourse  is  required  by  tlie  purposes  of 
war  itself.  But  does  it  end  all  treaties  ? In  answer  we  say 
that  certain  stipulations  are  in  their  nature  or  terms  last- 
ing. Such  are:  (1.)  d'hose  which  contemplate  a state  of  war, 
and  therefore  could  have  no  effect  if  rendered  null  by  war. 
(2.)  Those  Avliich  are  declared  to  he  perpetual,  like  the  lib- 
erty, under  our  treaty  of  1818  Avitli  Great  Britain,  “forever  to 
cure  and  dry  fish  ” in  certain  places  (§59).  War  can  only 
suspend  such  a provision.  (3.)  Those  which  imply  some  state 
or  relation  in  itself  permanent.  Of  this  kind  is  a past  recog- 
nition of  a state  within  certain  bountlaries.  For  an  organized 
community  upon  a specific  territory  is  an  admitted  fact,  to 
whicli  only  conquest,  the  destruction  of  a condition  otherwise 
permanent,  can  put  an  end.  (4.)  The  same  perpetual  nature 
belongs  to  a compact  to  regard  certain  rules  or  interpretations 
as  part  of  the  law  of  nations,  since  the  state  of  peace  or  war 
between  two  parties  cannot  affect  general  principles  of  justice. 

It  has  been  held  by  some,  especially  earlier,  Avriters,  in  some 
diplomatic  documents,  and  by  at  least  one  nation,  that  apai't 
from  cases  like  those  above  mentioned  treaties  do  not  survive 
a new  Avar.  Dr.  TAviss  says  that,  in  practice.  Great  Britain 
admits  of  no  exception  to  the  rule  that  all  treaties,  as  such, 
are  put  an  end  to  by  a subsequent  Avar  betAveen  the  contract- 
ing ^^arties.  (“  LaAv  of  Nations  in  Peace,”  § 234.)  That  the 
treaties  of  Westphalia  and  Utrecht  Avere  often  reneAved  in 
treaties,  folloAving  Avars  betAveen  the  parties  to  them,  indicates 
that  at  least  their  surviA'al  Avas  not  certain.  And  if  a Avar 
were  closed  Avithout  an  express  treaty,  the  rule  of  nti  pos&i- 
cletis  Avould  decide  even  territorial  soA^ereignty.  We  come, 
their,  to  this  conclusion  : that  the  effect  of  war  on  those  provis- 
ions of  treaties,  the  breach  of  Avhich  did  not  provoke  the  Avar, 
is  at  least  doubtful,  and  that  ireAV  treaties  after  war  ought  to 
contain  explicit  reneAval  of  such  arrangements.  This  is  to  a 
great  extent  the  practice. 

Dr.  Bluntschli  thinks  the  old  opinion  that  Avar  dissolves 
treaties  to  be  a deduction  from  the  doctrine  that  AA’ar  intro- 
duces a state  of  nature  v/ithout  rights,  so  that  as  soon  as  war 


§ 161. 


AND  KEDRESS  OF  INJURIES,  ETC. 


273 


is  held  to  be  a help  in  securing  lights  or  avoiding  wrongs  the 
old  opinion  falls  to  the  gTound.  “ The  state  of  Avar  as  little 
destroys  contract  rights  as  it  overturns  general  jural  order. 
War  may  CA-en  serve  as  a means  to  compel  a state  to  fulfill  its 
treaty-obligations.”  True,  but  redress  of  AAuong  puts  an  end 
often  to  treaties  Avhich  Avere  not  violated,  and  the  victor  deter- 
mines the  nature  as  Avell  as  the  amount  of  the  reparation. 
There  are,  again,  Avrongs  Avhich  violate  no  express  obligation, 
and  cannot  be  repaired  but  by  bringing  some  treaty  to  an  end. 
The  principle,  moreover,  of  the  survival  of  treaties  not  vio- 
lated by  the  enemy  is  of  no  great  practical  importance,  since 
the  Avinning  party  Avill  make  his  oaaui  terms. ^ 

4.  Such  is  the  case  as  far  as  public  riglits  are  concerned. 
But  private  rights,  the  prosecution  of  Avhich  is  interrupted  by 
Avar,  are  revived  by  peace,  although  nothing  may  be  said  upon 
the  subject ; for  a peace  is  a return  to  a normal  state  of  things, 
and  private  rights  depend  not  so  much  on  concessions,  like 
public  ones,  as  on  common  A'ieAvs  of  justice.  And  here  Ave 
include  not  only  claims  of  private  persons,  in  the  tAA'o  coun- 
tries, upon  one  another,  but  also  claims  of  individuals  on  the 
gOA'ernment  of  the  foreign  country,  and  claims  — priA’ate  and 
not  political  — of  each  goA'ernment  upon  the  other  existing 
before  the  AA^ar. 

§ 161. 

o.  The  effect  of  a treaty  on  all  grounds  of  complaint  for 
Avliich  a Avar  Avas  undertaken  is  to  abandon  them.  Or,  in  other 
Avords,  all  peace  implies  amnesty^  or  oblivion  of  past  subjects 
of  dispute,  Avhether  the  same  is  expressly  mentioned  in  the 

1 Bliintsclili,  § 538,  Ilcffter,  §§  99,  122,  Kliiber,  § 1G5,  note  a,  %vlio  advises 
ex])rcss  mcniion  of  former  treaties,  AA'^iklman,  i.,  176,  Whe.aton,  § 275  (comp. 
Dana,  p.  143),  deny  that  war,  of  course,  releases  from  treaty  obligations.  Calvo 
is  cautious  in  e.xpressing  liis  opinion.  (§  729,  ii.,  47.)  See  for  the  other  side  esp. 
I’hillimore,  iii.,  792-811,  2d  ed.  Formerly  some  sovereign, s,  in  declaring  war, 
renounced  all  treaties  with  the  foe.  The  doctrine  whicli  Sir  R.  Phillimore  sup- 
ports, “by  the  conclusions  of  accredited  writers  and  the  practice  of  states,”  has 
been  declared  to  be  (he  law  of  nations  by  President  Polk.  (Message,  1847.)  — For 
Vatti  l’s  oj  iiiiou  (B.  iv.,  §42)  and  the  interpretation  of  bis  words,  comp.  Pbill  , u. 
s.,  ])p.  796-797.  In  diplomatic  practice  the  English  opinion  seems  to  be  the  pre- 
vailing one.  ^ ; 


274 


RIGHTS  OF  SELF-DEFENSE 


§ 161. 


terms  of  the  treaty  or  not.  They  cannot,  in  good  faith,  be  re- 
vived again,  although  a repetition  of  the  same  acts  may  be  a 
rigliteous  ground  of  a new  war.  An  abstract  or  general  right, 
however,  if  passed  over  in  a treaty,  is  not  tliereby  waived.' 

6.  If  nothing  is  said  in  a treaty  to  alter  the  state  in  which 
the  war  actually  leaves  the  parties,  the  rule  of  ntl  pussidetia 
is  tacitly  accepted.  Thus,  if  a part  of  the  national  territory 
has  passed  into  the  hands  of  an  enemy  during  war,  and  lies 
under  his  control  at  the  peace  or  cessation  of  hostilities,  it  re- 
mains his,  unless  expressly  ceded. 

7.  So,  too,  if  a fortress  or  port  is  ceded  by  treaty,  it  must 
be  ceded  in  the  state  in  which  the  treaty  finds  it.  Good  faith 
requires  that  it  should  not  be  dismantled  or  blocked  up  after 
that  event. 

8.  When  a treaty  cedes  to  a conqueror  a part  of  the  terri- 
tory of  a nation,  the  government  is  under  no  obligation  to  in- 
demnify those  who  may  suffer  by  the  cession.^  What  the  con- 
queror acquires  in  such  a case  is  the  sovereignty.  The  old 
laws  continue  until  repealed  by  the  proper  authorities.  Pri- 
vate rights  remain,  or  ought  to  remain,  unimpaired. 

The  question  may  be  asked  whether  the  party  making  such 
a cession  of  inhabited  territory  is  under  any  pledge  to  secure 
the  neAV-comer  in  possession.  Or,  in  other  AAmrds,  must  the 
former  do  anything  beyond  renouncing  his  rights  of  sove- 
reignty over  the  tei’ritory,  and  leaving  it  free  and  open  to  the 
neAv  sovereign.  To  us  it  appears  that  this  is  all  he  is  bound  to 
do.  If,  then,  the  inhabitants  should  resist  and  reject  the  new 
sovereign,  as  they  have  an  undoubted  right  to  do,  — for  Avho 
gave  any  state  the  right  to  dispose  of  its  inhabitants,  — the 
question  noAv  is  to  be  settled  betAveen  the  province  or  territory 
and  the  conqueror.  (Comp.  §§53  and  54.) 

§ 162. 

A treaty  of  peace  begins  to  bind  the  parties  Avhen  it  is 
signed  (Comp.  § 111),  and  to  bind  individuals  of  the  tAVO 

1 Comp.  Kliiber,  § 324 ; Wheaton,  iv.,  4,  § 3. 

* Kent,  i.,  178,  Lcct.  viii. 


§ 162. 


KEDRESS  OP  INJURIES,  ETC. 


275 


belligerent  nations  when  they  are  notified  of  its  existence. 
(Comp.  § 157.)  Injuries  done  meanwhile  must  he  made  good 
by  the  state  to  which  the  person  committing  the  injury  be- 
longs. But  it  is  held  that  captures  made  after  a peace,  but 
before  the  captor  has  become  aware  of  it,  subject  him  to  a 
civil  suit  for  damages,  and  that  he  must  fall  back  on  his  gov- 
ernment to  save  him  harmless.  It  is  also  held  that  a capture 
made  before  the  time  for  the  cessation  of  hostilities  at  a par- 
ticular spot,  but  with  a knowledge  that  the  peace  has  been 
concluded,  is  unlawful,  and  must  be  restored ; the  reason  for 
which  rule  is  that  the  limit  of  time  is  intended  to  cover  hos- 
tile acts  performed  in  ignorance  of  the  new  pacific  relation. 


CHAPTER  11. 


OF  THE  EELATIOKS  BETWEEN  BELLIGEEENTS  AND  NEUTRALS. 
Section  I.  — Of  the  Obligations  and  Rights  of  Neutral  States. 

§163. 

The  rights  of  neutrals  have  grown  up  to  be  an  important 
Doctrine  of  international  law  in  modern  times.  The 

ancieiits  put  the  rights  of  war  foremost,  and  the  neu- 
growtb.  stood  chiefly  in  the  passive  relation  of  non-inter- 

ference. 'Phis  was  owing,  in  part,  to  the  fact  that  a sj’stem  of 
confederations  united  the  states  of  antiquity  together  in  war, 
so  that  few  prominent  powers  stood  aloof  from  the  struggles 
in  which  their  neighbors  were  engaged,  and  in  part  to  the 
small  importance  of  neutral  interests.  Things  have  put  on  a 
new  shape  with  the  growth  of  wide  intercourse,  especially  by 
sea,  and  with  the  spread  of  one  code  of  public  law  over  so 
many  powerful  states  of  the  world,  which,  when  they  have 
stood  aloof  from  war,  have  created  for  themselves  rights,  or 
secured  the  acknowledgment  of  existing  ones.  Now,  when  a 
war  arises  between  trvo  states,  the  interests  of  all  ireutrals 
are  more  affected  than  formerly  ; or-,  in  other  words,  neutral 
power  has  increased  more  than  war  porver,  and  the  tendency 
is  more  and  more  towards  such  alterations  of  the  code  of  rvar 
as  will  favor  neutral  commerce ; a change  evidently  in  the 
direction  of  peace  and  of  Christian  civilization. 

The  increasing  importance  of  questions  connected  rvith  neu- 
trality is  shown  by  the  small  space  which  Grotius  gives  to  it, 
compared  with  his  immense  copiousness  on  many  now  minor 


§ 1G3.  RELATIONS  BETWEEN  BELLIGERENTS,  ETC.  277 

questions.  He  devotes  a short  and  trifling  chapter  to  those 
who  are  “ medii  in  hello  ” (iii.,  17),  and  a section  to  those 
who  are  not  parties  to  a Avar,  and  yet  supply  aid  to  the  com- 
batants (iii.,  1,  § 5).  This,  if  Ave  are  not  deceived,  is  nearly 
the  extent  of  his  doctrine  of  neutrality.  Take  up  noAv  any 
of  the  leading  publicists  of  the  last  hundred  years,  and  you 
Avill  find  the  chapters  devoted  to  this  doctrine  second  to  feAv 
or  none  others  in  fullness  and  importance. 

A neutral  state  is  one  Avhich  sustains  the  relations  of  amity 
to  both  the  belligerent  parties,  or  negatively  is  a non 
hostis,  as  Bynkershoek  has  it,  one  AAdrich  sides  AA'ith 
neither  party  in  a Avar. 

There  are  degrees  of  neutrality.  Strict  neutrality  implies 
that  a state  stands  entirely  aloof  from  the  operations 

. , . Gradations 

of  AA'ar,  giving  no  assistance  or  countenance  to  either  pi  neutrai- 
belligerent.  Im-perfect  neutrality  may  be  of  tAAm 
kinds  : it  may  be  impartial^  inasmucli  as  both  belligerents  have 
equal  liberty  to  pursue  the  operations  of  Avar,  or  certain  oper- 
ations, such  as  transit  of  troops,  purchase  of  military  stores, 
enlistments  of  soldiers  or  seamen,  Avithin  the  neutral’s  terri- 
tory; or  qualified  by  an  anterior  engagement  to  one  of  the 
parties,  as  by  a covenant  to  furnish  a contingent  of  troops,  or 
to  place  a certain  number  of  ships  at  liis  disposal.  It  is  man- 
ifest that  agreements  like  these  partake  of  the  nature  of  al- 
liance. The  other  belligerent  then  is  free  to  decide  Avhetlier 
he  Avill  regard  such  a state  as  neutral  or  as  an  ally  of  his  en- 
emy. If  the  assistance  to  be  rendered  is  trifling,  and  has  no 
reference  to  a particular  case,  or  a AA^ar  Avith  a particular  na- 
tion, it  Avill  probably  be  overlooked  ; otheiuvise  it  Avill  expose 
the  nation  furnishing  tlie  assistance  to  the  hostility  of  the 
other.  Such  AA'as  the  agreement  of  Denmark,  put  into  effect 
in  1783,  in  a AA’'ar  betAA'Cen  SAveden  and  Russia,  to  furnish  cer- 
tain limited  succors  to  the  latter.  Such,  also  ai’e  the  exclusive 
juivileges,  Avhich  may  liaA’e  been  granted  beforehand,  of  ad- 
mitting the  armed  vessels  and  prizes  of  one  of  the  belligerents 
into  the  neutral’s  jmrts. 

A state  may  stipulate  to  observe  perpetual  neutrality  to- 


278 


OF  THE  RELATIONS  BETWEEN 


§ 163 

Avards  some  or  all  of  its  surrounding  neighbors,  on  condition 
Permanent  ^f  liaA’ing  its  oAvii  neutrality  respected.  It  thus  strips 
neutrality?  gf  powei'  of  Sovereignty,  so  far  forth 

that  it  cannot  declare  Ai-ar  against  any  of  these  states  except 
for  the  act  of  violating  this  neutrality.  Such  is  the  position 
of  Switzerland,  — including  the  provinces  of  Chablais  and 
Faucigny  and  all  the  territory  of  Savoy,  north  of  Ugine,^  — 
and  of  Belgium,  Avhose  neutrality  and  inviolability  of  territory 
were  formally  recognized,  — that  of  the  first  by  the  declara- 
tion of  the  allied  poAvers,  of  March  20,  1815,  Avhich  the  fed- 
eral authorities  soon  aftei'AA^ards  accepted,  and  that  of  the 
latter  by  the  five  great  poAvers  on  its  final  treaty  AA'ith  Holland 
in  1830.  The  reasons  for  these  arrangements  Avere  the  Avelfare 
of  the  minor  states  before  mentioned,  and  the  preservation  of 
the  peace  of  Europe  : SAvitzerland  furnishes  patliAvays  for  ar- 
mies betAA'een  France  and  Italy,  and  Belgium  is  interposed  as 
a barrier  betAveen  France  and  Germany.  The  free  toAvn  of 
CracoAV  also  enjoyed  for  a Avhile  a kind  of  guaranteed  neu- 
trality, before  it  lost  its  liberties  in  1840.^ 

In  18G7,  again,  after  the  dissolution  of  the  German  Confed- 
eracy, the  question  arose  AA'hat  the  status  of  the  duchy  of 
Luxemburg  should  be,  Avhich  had  been  connected  Avith  the  Ger- 
manic body,  and  AA^as  united  Avith  Holland  as  a separate  state 
under  the  same  king.  The  fortress  of  the  city  of  Luxemburg 
Avas  too  strong  to  be  in  the  hands  of  France  or  of  Prussia.  By 
a treaty  at  London,  JMay  11, 1867,  at  Avhich  the  five  great  poAV- 
ers,  Avith  Holland  and  Luxemburg,  Belgium  and  Italy,  Avere 
represented,  the  grand  duchy  Avas  to  form  a perpetually  neu- 
tral st!>te,  under  the  guaranty  of  Austria,  Great  Britain,  Prus- 
sia, and  Russia.  Luxemburg  AAms  to  cease  to  be  fortified,  and 
the  fortress  Avas  to  be  demolished  under  the  charge  of  the 
Grand  Duke,  the  King  of  Holland,  so  that  it  should  be  an  open 

^ The  ncutriilit}’  of  these  Sardinian  districts,  rvliich  grow  out  of  a great  Eu- 
ropean .arrangement,  onglit  not  to  cease,  in  consequence  of  their  cession  to 
France.  Comp.  Appendi.x  ii.,  nnder  1859. 

2 Sometimes  there  is  a tetnporary  nentralit}',  nnder  which  the  two  belligerents 
exempt  a certain  territory  from  tlie  operations,  of  war,  such  as  the  exemption  of 
the  pontifical  territory  in  1859.  Comp,  Calvo,  ii.,  289. 


§ 164. 


BELLIGERENTS  AND  NEUTRALS. 


279 


citj',  the  fortifications  not  to  be  rebuilt,  nor  a military  estab- 
lishinent  maintained  there.  Also  the  Grand  Duchy  of  Lim- 
burg Avas  to  form  an  integral  part  of  the  Kingdom  of  Holland, 
and  a special  l elation  between  certain  territories  pertaining  to 
that  Grand  Duchy  and  Luxemburg  Avere  to  cease.  (See  “N. 
li.  Gen.,”  XA’iii.,  445.) 

The  position  of  the  neutral  glA’es  rise  to  rights,  AA’hicli  may 
be  defended  against  attempted  aggressions  of  a bel-  Armeaneu- 
ligerent  by  armed  forces,  and  several  neutrals  may 
unite  for  this  purpose.  This  is  called  an  armed  neutrality,  of 
Avhich  the  tAA'o  leagues  of  the  Baltic  poAvers  in  1780  and  1800 
furnish  the  most  noted  instances.  But  it  may  be  doubted 
Avhether  the  term  neutrality  can  be  applied  to  these  leagues, 
Avhich  not  only  armed  themselves  for  self-defense,  but  laid 
doAvn  principles  of  public  laAV  against  the  knOAVii  maxims  of 
one  of  the  belligerents,  Avhich  they  Avere  ready  to  make  good 
by  force.  (§§  189,  209.) 

§164. 

In  most  wars  nations  are  bound  to  be  neutral,  as  Laving  no 
vocation  to  judge  in  the  disputes  of  other  states,  and  obligations 
as  being  already  friends  to  both  parties.  The  obli-  ueutrais. 
gations  mnst  be  fixed  and  knoAvii,  in  order  to  prevent  the  neu- 
tral from  slipping  into  a position  to  Avhich  Avar  between  his 
friends,  if  he  do  not  keep  his  ground,  mnst  force  him.  “The 
enemies  of  our  friends,”  says  Bynkershoek  (“  Qusest.  J.  P.,”  i., 
9),  “ are  to  be  considered  in  a tAvofold  light,  as  our  friends  and 
our  friends’  enemies.  If  you  consider  them  as  friends,  Ave 
may  rightfully  aid  and  counsel  them,  and  may  supply  them 
Avith  auxiliary  troops,  arms,  and  other  things  Avhich  AA^ar  has 
need  of.  But  as  far  as  they  are  our  friends’  enemies,  it  is  not 
pevmilted  to  us  to  do  this,  for  thus  Ave  should  prefer  one  to 
the  other  in  AA'ar,  Avhich  equality  in  friendship  — a thing  to 
be  e-specially  aimed  at  — forbids.  It  is  better  to  keep  on 
friendly  terms  Avith  both  than  to  favor  one  of  the  tAvo  in 
Avar,  and  thus  tacitly  renounce  the  other’s  friendship.”  The 
principles  from  Avhich  Ave  start  seem  to  be  clear  enough  : at 


280 


OF  THE  RELATIONS  BETWEEN 


§ 164. 


the  same  time,  for  the  I’easoii  that  neutrality  is  a thing  of  de- 
grees, and  that  the  practice  of  nations  has  been  shifting,  it  is 
a little  dilhcult  to  lay  down  with  precision  the  law  of  nations 
in  regard  to  it,  as  it  is  at  present  understood.  That  law 
seems  to  he  tending  towards  strict  neutrality. 

A just  war  being  undertaken  to  defend  rights,  each  sove- 
reiccnty  must,  as  we  have  seen,  decide  for  itself 

Ncutv.als  ® . , . ,. 

lluls^.  be  im-  wlietlier  its  war  be  lust  and  expedient.  It  follows 

partial.  ^ 

that  powers  not  parties  to  tlie  Avar  must  treat  both 
belligerents  alike  as  friends.  Hence  no  jirivilege  can  be 
granted  or  Avithhehl  from  one  and  not  equally  from  the  other. 
Thus,  if  transit,  or  the  entrance  into  harbors  of  ships  of 
Avar,  for  the  purpose  of  refitting  or  of  procuring  military  sup- 
plies, or  the  admission  of  captured  prizes  and  .their  cargoes, 
is  allowed  to  the  one  belligerent,  the  other  may  claim  it  also. 
Otlierwise  a state  aids  one  of  its  friends  in  acts  of  Auolence 
against  another,  AAdiich  is  unjust,  or  aids  a friend  in  fighting 
against  another  party,  Avliich  is  to  be  an  ally  and  not  a neu- 
tral. 

§ 165. 

But  the  rule  of  impartiality  is  not  enough.  The  notion  of 
neutrality,  to  say  nothing  of  the  convenience  of  the 
tiaiityTs^not  iieutral  aiid  his  liability  to  be  draivii  into  the  Avar, 
demands  something  more.  It  is  not  an  amicable 
act  Avheii  I supply  two  of  my  friends  Avith-  the  means  of  doing 
iiijuiy,  provided  I do  as  much  for  one  as  for  the  other.  Such 
a relation  is  not  that  of  a medins  inter  hastes,  but  of  an  im- 
partial enemy,  of  ix,jack  on  hath  sides.  Moreover,  it  is  impar- 
tiiilit}'  in  form  only  Avhen  I give  to  two  parties  rights  within 
my  territories,  Avhich  may  be  important  for  the  one  and  use- 
less to  the  other.  The  United  States  in  a Avar  betAveen  Great 
Britain  and  Russia  might  alloAV  both  parties  to  enlist  troops 
Avithin  its  borders,  but  Avhat  Avould  such  a privilege  be  Avorth 
to  Russia  ? And,  indeed,  almost  every  privilege  concedetl  by 
neutrals  Avould  be  apt  to  enure  more  to  the  benefit  of  one 
than  of  the  other  of  tAvo  hostile  nations.  A rule  of  greater 
fairness  Avould  be  to  alloAV  nothing  to  the  belligerents  Avhich 


§ 1C6. 


BELLIGERENTS  AND  NEUTRALS. 


281 


either  of  them  Avould  object  to  as  being  adverse  to  his  in- 
terests ; but  this  rule  would  be  subjective,  fluctuating,  and 
probably  impracticable.  A rule,  again,  expressive  of  strict 
neutrality,  would  prohibit  the  neutral  from  rendering  any  ser- 
vice specially  pertaining  to  war,  or  allowing  his  territory  to 
be  used  for  any  military  purpose  by  either  belligerent.  This, 
if  we  add  the  qualification,  “ unless  engagements  previous  to 
the  war  concede  some  special  assistance  to  one  of  the  parties, 
which  assistance  is  not  of  importance  enough  to  convert  a 
neutral  into  an  ally,”  would  nearly  express  what  is  the  pres- 
ent law  and  usage  of  nations. 

§ 166. 

But  it  is  necessary  to  descend  to  particulars.  We  shall 
consider,  first,  what  duties  neutrality  does  not  preclude  ; sec- 
ondly, what  it  binds  the  neutral  not  to  do  or  allow;  and  then 
shall  take  up  by  themselves  certain  actions  which  are  open  to 
doubt. 

1 . The  neutral  ought  to  discharge  the  duties  of  humanity 
to  both  belligerents,  for  these  are  still  due  even  to  xcutnis 
an  enemy,  and  are  due  to  persons  of  no  nationality.  Humane  to 
It  is  clear  that  a ship  of  war  in  distress  may  during 
war  run  into  a neutrtd  port,  unless  there  is  some  special  rea- 
son to  prevent  it.  So  asylum  is  allowed  within  neutral  terri- 
tory :ind  waters  to  a defeated  or  fugitive  belligerent  force,  and 
the  victor- nmst  stop  his  pursuit  at  the  borders.  The  condi- 
tions, however,  according  to  which  refugees  shall  be  received, 
are  not  absolutely  settletl.  In  the  case  of  ti’oops  fleeing  across 
the  borders,  justice  requires  that  they  shall  be  protected,  not 
as  bodies  of  soldiers  with  arms  in  their  hands,  but  as  individ- 
ual subjects  of  a friendly  state  : they  are,  we  believe,  in  prac- 
tice generally  disarmed,  and  supported  in  their  place  of  shelter 
at  the  expense  of  their  sovereign.^  The  other  course  would 
be  unfriendly,  as  protected  soldiers  might  issue  forth  from  a 

1 Tlie  rules  of  ilie  Conference  of  Brussels  of  1871  rcfiuirc  that  the  neutral 
“ les  interuera,  iiutant  que  possible,  loin  clii  thcVitre  ilc  hi  guerre.”  They  may  bo 
kept  under  guard  in  camps,  or  shut  within  fortresses.  (Art.  liv.)  See  § 142. 


282 


OF  THE  RELATIONS  BETWEEN 


§ 166, 


friend's  territory  all  ready  for  battle  ; and  would  also  tend  to 
convert  the  neutral  soil  into  a theatre  of  war.  In  the  case  of 
ships  of  war  running  into  neuti'al  Avaters  in  order  to  escape 
from  an  enemy,  to  demand  that  they  shall  either  be  disarmed, 
like  fugitive  troops,  or  return  to  the  high  seas,  seems  to  be  a 
harsh  measure,  and  unauthorized  by  the  usages  of  nations. 
An  instance  of  such  harshness  occurred  in  a recent  Avar  betAA’een 
SchlesAvig-IIolstein  and  Denmark.  A small  Avar  steamer,  be- 
longing  to  the  former  party,  ran  for  safety,  in  July,  1850,  into 
the  Avaters  of  Liibeck,  Avhich  was  on  friendly  terms  Avith  both 
belligerents.  The  senate  of  Liibeck  had  given  orders  that 
vessels  of  Avar  of  eithc^  appearing  Avithin  its  jurisdic- 

tion, must  lay  doAAm  their  arms,  or  depart  beyond  cannon-shot 
from  the  coast.  The  lieutenant  commanding  the  steamer  chose 
the  latter  alternative.  In  justification  of  its  conduct,  Avhich 
was  impartial,  Liibeck  only  pleaded  that  the  neutral,  in  re- 
gard to  the  rules  of  hospitality,  must  consult  its  own  interests, 
and  that  small  states,  in  order  to  have  their  character  for  neu- 
trality respected,  must  “ observe  in  everything  Avhich  relates 
to  Avar  itself  the  stricter  rules  of  neutrality.”  They  Avould 
receive,  they  said,  vessels  of  the  belligerent  parties  only  when 
escaping  the  perils  of  the  seas,  and  then  only  Avhilst  such  perils 
lasted.  Tlie  analogy  from  the  practice  of  disarming  fugitive 
troops  does  not  hold  here.  If  the  ship  is  driven  out  at  once, 
it  goes  Avhere  a superior  force  is  Avaiting  for  it ; if  it  remains 
disarmed,  the  expense  and  inconvenience  are  great.^ 

§167. 

The  same  spirit  of  humanity,  as  Avell  as  respect  for  a 
jiay  admit  friendly  poAver,  imposes  on  neutrals  the  duty  of  open- 
wtrofttio  ll^sir  ports  to  armed  vessels  of  both  belligerents, 

Leiiigerents.  pm’poses  having  no  direct  relation  to  the  Avar, 

and  equally  likely  to  exist  in  time  of  peace.  Cruisers  may 

^ Von  Kalteiiboni,  antlioi’  of  tha  Yorlnufcr  dcs  Hugo  Gi'ofius,  ])nl)lislied  at 
Hambni't;,  in  ISoO,  a brochure,  ciUitled  Kricfisschiffe  auf  r,entmlem  Gehi(tc,ixovn 
Avliich  these  facts  arc  drawn  ; and  whicli,  wliile  occupied  with  an  examination 
of  tltis  jtarticnlar  case,  contains  an  excellent  summary  of  the  rights  and  duties 
of  neutrals  on  their  own  territories. 


§ 168. 


BELLIGERENTS  AND  NEUTRALS. 


283 


sail  into  neutral  harbors  for  any  of  the  piu’poses  for  which 
merchant  vessels  of  eitlier  party  frequent  the  same  places,  ex- 
cept that  merchant  vessels  are  suffered  to  take  military  stores 
on  board,  which  is  forbidden  generally,  and  ouglit  to  be  for- 
bidden, to  ships  of  war.^ 

2.  The  general  practice  of  nations,  dictated  perhaps  by 
comity,  has  hitherto  permitted  cruisers  to  bring  their  prizes 
into  neutral  ports.  We  have  already  seen  that  this  is  not  ob- 
ligatory on  neutrals,  and  sound  policy  demands  that  it  be  pro- 
hibited.^ 

§168. 

The  British  Government  in  our  late  war  prohibited,  by  an 
order  of  June  1,  1861,  the  bringing  of  prizes  by  vessels  of 
war  and  privateers  of  both  parties  into  the  Avaters  of  the 
British  kingdom  and  its  colonies.  France,  by  a declaration 
of  June  10,  1861,  made  the  same  prohibition,  excepting  that 
such  A’essels  Avith  prizes  are  alloAved  to  remain  tAventy  four 
hours  in  her  ports,  and  to.  remain,  in  case  of  a forced  suspen- 
sion of  a cruise  (veldclie  foreae),  as  long  as  the  necessity  lasts. 
Treaties  sometimes  require  this. 

M.  Hautefeuille,  in  his  “ Quelques  Questions  du  Droit  In- 
ternat.  Maritime,”  1861,  discusses  the  question  Avhether  these 
prohibitions  are  compatible  Avith  previous  treaties  Avith  the 
United  States.  In  our  treaty  of  1794  Avith  Great  Britain,  Ar- 
' tide  XXV.,  it  is  said  that  “ it  shall  be  laAvful  for  the  ships  of 
AA'ar  and  privateers  belonging  to  the  said  parties  respectively  to 
carry  Avhithersoever  they  please  [that  is,  into  any  of  each 
other’s  harbors]  the  ships  and  goods  taken  from  their  ene- 
mies.” It  is  also  said  that  “ no  shelter  or  refuge  shall  be  given 
to  such  as  have  made  a prize  upon  the  subjects  or  citizens  of 
either  party.”  M.  Hautefeuille  remarks  on  this  that  “Article 
XXVIll.  says  positively  tliat  the  ten  first  articles  shall  be  per- 
manent, but  that  the  others  shall  be  revised  in  the  space  of 


1 AVhetlior  belligerent  cruisers  ought  to  bo  permitted  to  lake  supplies  of  coal  in 
neutral  ports  will  be  considered  below,  § 195. 

2 That  is,  captures  in  war  ought  to  be  attended  with  so  many  inconveniences 
as  to  check  the  spirit  of  plunder. 


284 


OF  THE  DELATIONS  BETWEEN 


§ 168. 


tAvelre  years  ; and  as  tliey  have  not  been  revised,  they  are  thus 
abolished.  But,”  he  adds,  “ they  have  not  been  replaced  by 
any  other  stipulation,  and  it  is  a principle  of  jurisprudence  ac- 
knowledged by  the  nations  and  b}^  England  herself,  as  ,we 
shall  prove  in  speaking  of  contraband,  that  in  this  case  their 
ancient  treaties  ought  to  regulate  the  relations  of  two  contract- 
ing parties.”  He  therefore  argues  that  tlie  arrangements  of 
tlie  treaty  admitting  our  vessels  with  their  prizes  and  refusing 
shelter  to  captors  of  our  merchant  ships  are  inconsistent  with 
the  order  of  June  10,  “■  unless  established  usage  is  violated  and 
the  ancient  treaties  arc  considered  as  absolutely  without  val- 
ue.” But  he  fails  in  his  foundation  of  fact.  He  misread  the 
treaty,  which  does  not  say  that  the  articles  after  Article  X. 
shall  be  revised  within  twelve  years,  but  that  they  are  “ lim- 
ited in  their  duration  to  twelve  years,”  excepting  Article  XH., 
which  expired  by  its  own  limitation  two  years  after  the  end 
of  the  war  then  existing  betAveen  Great  Britain  and  her  en- 
emies, and  which,  it  is  agreed,  shall  be  revised  if  possible, 
and,  if  not,  shall  expire  altogether.  (Comp.  Art.  XH.,  and 
the  additional  article  at  the  end  of  the  treaty.)  The  order 
of  June  10,  then,  was  perfectly  legal  and  just,  as  far  as  this 
treaty  was  concerned. 

But  had  France  a right  to  exclude  public  or  private  ves- 
sels Avith  their  prizes  ? The  ConAmntion  of  1800,  in  Article 
XXIV.,  has  the  expression,  “When  the  ships  of  Avar  of  the 
two  contracting  parties,  or  those  belonging  to  their  citizens, 
Avliich  are  armed  in  Avar,  shall  be  admitted  to  enter  Avith  their 
prizes  the  ports  of  eitlier  of  the  tAvo  parties,”  implying  that 
such  a privilege  of  admission  is  not  absolute,  but  may  be 
Avithheld.  It  is  added,  hoAA'eAmr,  at  the  end  of  this  ai'ticle,  that 
“ its  stipulations  shall  not  extend  bejmnd  the  priAuleges  of  the 
most  faAmred  nation.”  The  question  then  is,  as  M.  Haute- 
feuille  remarks,  Avhether  any  nation  is  favored  so  far  as  to 
bring  its  prizes  into  French  ports.  He  ansAvers  that  the  dec- 
laration of  Paris  of  1856,  abolishing  prlvateeiing,  has  virtu- 
ally abolished  that  favor  for  all  nations  except  Spain,  and  that 
he  knoAvs  of  no  treaty  of  this  nature  Avith  Spain.  But  it  may 


§ 109. 


BELLIGERENTS  AND  NEUTRALS. 


285 


reasonably  be  objected  to  his  argument  that  the  declaration  of 
Paris  has  no  reference  to  ships  of  war  bringing  in  prizes  into 
the  ports  of  parties  to  the  declaration.  If  tliat  "svas  allowed 
by  treaty  before,  it  is  not  abrogated  by  the  declaration.  If, 
tlien,  any  nation  luid  such  favors  in  French  ports  in  1861,  the 
French  Government  violated  their  treaty  with  us  by  the  dec- 
laration of  June  10,  1861. 

' INI.  Hautefeuille  goes  on  to  say  that  if  the  other  nations 
besides  Great  Britain  and  France  had  treaties  allowing  this 

O 

right  to  the  United  States  in  1861,  they  were  bound  to  treat 
both  the  vessels  of  the  United  States  and  those  of  the  Confed- 
erates with  the  most  perfect  impartiality,  “ because  both  [the 
United  States  and  the  Confederates]  were  parties  to  these 
acts.”  We  had  supposed  the  teachings  of  international  law 
to  be  that  revolting  communities  are  without  rights,  except 
those  of  humanity,  until  received  into  the  fellowship  of  na- 
tions by  recognition.  The  Confederate  States  broke  away 
from  the  body-politic  of  the  Union,  renouncing  their  obliga- 
tions, and  therefore  their  privileges.  How  could  old  treaties 
apply  to  them  any  longer  ? If  this  doctrine  were  true,  they 
had  a right  to  the  advantages  of  all  treaties,  and  ought  to  need 
no  recognition. 

§169. 

On  tlie  other  hand,  it  is  a violation  of  neutrality  for  a neu- 
tral state  to  lend  money,  or  supply  troops  (with  the 
exception  already  mentioned),  or  open  harbors  for  tmismay 
hostile  enterprises ; or  to  allow  the  presence  of  any 
individual  or  vessel  pertaining  to  a belligeient  stale  Avithin 
his  territory,  AAdien  believed  to  be  stationed  there  for  the  pur- 
pose of  carrying  out  a hostile  undertaking  ; or  to  suffer  its 
subjects  to  prepare,  or  to  aid  in  preparing  or  augmenting,  any 
hostile  expedition  against  a friendly  power,  as  for  instance  to 
build,  arm,  or  man  ships  of  war  Avith  such  a pttrpose  in  aucav, 
or  to  build  them  Avitli  this  intent  so  far  as  to  make  them 
ready  for  an  armament  to  be  put  on  board  upon  the  high 
seas  or  in  some  neutral  port.  Nor  can  he  alloAv  his  courts  to 
be  employed  in  deciding  upon  the  validity  of  captures  made 
by  belligerent  vessels.  


286 


OF  THE  RELATIONS  BETWEEN 


§ 169. 


Henc?,  although  a ship  may  he  sold  iu  a neutral  count)  y to 
a belligeient,  as  an  article  cf  commerce,  the  augmentation 
of  a cruiser's  force  in  such  a country  rvill  taint  all  its  captures 
brought  into  such  a country's  ports  during  its  cruise.  Nor, 
agiiiii,  can  the  neiiti-al  during  a war  acquire  by  purchase  or 
otherwise  any  conquest  made  by  either  of  the  parties,  Avithout 
deserting  his  unbiased  neutral  position. 

If  a neutral  poAA^er  violates  its  obligations  in  these  respects, 
or  winks  at  hostile  proceedings,  such  conduct  may  afford 
ground  for  damages,  and  even  for  Avar.  If  it  is  careless  in 
not  preventing  damage  to  a friend  from  the  unejertakings  of 
its  subjects,  it  is  liable  for  the  loss  thence  resulting.  (§  174.) 
Nor  can  it  plead  the  inefficiency  of  its  laws,  or  AA^ant  of  suffi- 
cient hiAV,  for  all  mitioiis  are  bound  to  enfoi’ce  the  law  of  na- 
tions Avithin  their  OAAur  lluiits.  (§§  29,  228.)  It  ought  to  be 
said,  hoAveA’er,  that  the  base  arts  of  merchants  and  sliip-buikleis 
Avill  often  prev'ent  governments  from  obtaining  clue  evidence 
of  the  existence  of  such  hostile  designs ; and  that  the  dis- 
tinction betAveen  Avhat  is  merely  contraband  of  A\"ar  — as  a 
ship  of  AAair  made  for  sale,  if  that  be  a fair  instance — and 
that  Avliich  is  a hostile  expedition,  is  sometimes  so  nice  that 
the  present  law  of  nations,  and  municipal  law  enforcing  it, 
must  alloAV  many  Avrongs  done  to  neutriils  to  slip  tln-ough 
their  fingers.  Might  not  something  be  gained,  if,  dui'ing  Avais 
between  friendly  states,  builders  and  armers  of  vessels  Avere 
required  by  neutr.d  gOAmrnments  to  give  security  to  double  the 
value  that  these  Avere  not  intended  to  be  used  in  hostile  expe- 
ditions.^ (Comp.  § 193,  note.) 

§170. 

The  case  of  the  Alahama,  Avhich  is  likely  to  become  one  of 
cn,-eof  the  1^''^  cnuses  celihres  of  international  laAV,  deserves  some 
Aiuhamn.  ]iotice  here.  The  leading  probabilities  and  facts  of 
the  case  are  these  : — 

1 For  the  conduct  of  our  government  in  jircveuling  liostilo  expediiions,  and  in 
making  leparatiuns  for  wrongs  committed  Iw  then',  when  they  liad  had  tlicir 
origin  in  our  ports,  see  a pamphlet  entitled  English  Neulralitg,  by  G.  P.  Lowry, 
New  York,  1863. 


§ 170. 


BELLIGERENTS  AND  NEUTRALS. 


287 


1st.  The  vessel,  called  at  first  No.  290,  and  now  known  as 
the  Alabama,  was  evidently  intended  to  be  a ship  of  war,  and 
Avas  confessedly  built  for  a foreign  government. 

2d.  An  active  part  Avas  taken  in  the  construction  and  su- 
peiintendence  of  the  A'cssel  by  a man  Avho  had  a little  before 
taken  the  Oreto  into  the  West  Indian  seas,  — a vessel  built 
to  be  a gunboat,  and  professedly  destined  for  Palermo, — and 
Avlio  AA'as  shown  to  have  come  from  the  Confederate  States 
into  the  INIersey  in  a steamer  carrying  their  flag. 

3d.  One  person  deposed  on  oath  that  this  man  told  him  that 
the  vessel  Avas  going  out  to  the  government  of  the  Confederate 
States  to  fight  for  them. 

4th.  The  testimony  touching  the  destination  of  the  Amssel 
Avas  suck  that  the  counsel  of  the  ambassador  of  the  United 
States  gave  the  AAritten  opinion  that  a.  stronger  case  of  in- 
fringement of  the  Foreign  Enlistment  Act  could  Avith  diffi- 
culty be  made  out.  “It  is  little  better,”  he  says,  “than  a 
dead  letter,  if  this  A’essel  can  escape.”  He  thinks  that  in  such 
a case  the  Federal  Government  AA'ould  have  serious  grounds 
for  remonstrance.  It  ought  to  be  said,  hoAvever,  on  the  other 
hand,  that  eminent  laAV3’ers,  consulted  bj"  the  British  GoA^ern- 
ment,  gave  the  opinion  that  they  could  see  in  the  building  of 
a ship,  adapted  for  AAavlike  purposes  and  delivered  in  an  Eng- 
lish port  to  a purchaser  knoAvn  to  be  an  agent  of  a foreign 
belligerent  poAver,  no  offense  against  the  Foreign  Enlistment 
Act  on  the  part  of  the  builder,  unless  the  builder  made  him- 
self a party  to  the  equipping  of  a A^essel  for  AA'arlike  purposes. 
The  Alabama  appears  to  luiA’e  been  equippDcd  at  the  Azores, 
and  not  in  England  at  all. 

5th.  Evidence  Avas  in  the  hands  of  the  government  as  earlA' 
as  July  23,  at  the  latest,  Avhich,  in  the  language  of  a candid 
British  Avriter  (Professor  Bernard,  “ Bi  itish  Neutrality,”  p. 
385),  “might  haAm  satisfied  a jury”  that  the  A'essel  Avas  in- 
tended for  the  Confederate  service.  The  Solicitor  of  the 
United  States  informed  the  Secretary  of  the  Board  of  Cus- 
toms at  London  on  the  28th  that  she  AA'ould  sail  the  next  dayx 
Orders  Avere  sent  to  detain  her  on  the  31st,  but  she  left  port 
that  day,  too  soon  to  have  them  executed. 


288 


OF  THE  RELATIONS  BETWEEN 


§ 170. 


Gtli.  The  vessel  was  carvied  to  Terceira,  was  joined  by  a 
barque  from  tlie  Thames,  containing  most  of  the  guns  and 
stores  intended  for  her,  and  by  another  from  the  IMersey,  con- 
veying,  besides  stores,  a number  of  men,  among  whom  Avas 
the  future  captain.  The  preparations  Avere  completed  here  at 
a secluded  part  of  the  coast,  the  Confederate  flag  Avas  run  up, 
and  the  A^essel  Avent  on  her  Avay. 

7.  No  orders  Avere  given  to  seize  her,  as  having  violated 
English  laAv,  or  as  having  been  built  in  violation  of  the  letter 
or  spirit  of  the  hiAv  of  nations.  She  Avas  regarded  like  any 
other  vessel  built  for  a belligerent  poAver. 

This  case  is  important,  as  not  only  giving  rise  to  ques- 
tions concerning  English  hiAv,  but  as  involving  the  principle 
Avhether  a neutral  is  or  is  not  bound  under  the  laAV  of  nations 
to  protect  its  friend  against  hostile  expeditions  commenced 
Avithin  the  territory,  and  Avhether  the  AAmnt  of  efficient  laAA'S 
AAais  a fair  excuse.  Shall  the  completion  of  such  an  expedition 
in  foreign  Avaters  — shall  an  obvious  trick,  Avhich  is  alAA^ays 
possible  — be  a bar  against  all  claims  for  damages,  as  many 
English  statesmen  and  ]aAA"3’ers  think,  or  did  the  criminal 
intent,  begun  at  Liverpool,  and  made  apparent  by  evidence 
there,  furnish  the  United  States,  as  iNIr.  Adams  claimed,  Avith 
cause  of  complaint  of  injuries  Avhich  the  British  Government 
Avas  bound  to  make  good  ? Is  municipal  laAV,  or  are  the  gen- 
eral obligations  of  states  to  each  other,  to  determine  the  ques- 
tion ? (See  Professor  Bernard,  u.  s.,  chapters  xiii.-xv.,  the 
present  AATiter’s  article  on  the  Alabama  question,  “ Noav  Eng- 
lander,” July,  18G9,  ami  a number  of  articles  by  Mr.  George 
Bemis  in  Massachusetts  iieAA'spapers.) 

§ 171. 

It  Avas  formerly  thought  that  the  neutral  might  allow  the 
transit  of  belligerent  troops  through  his  territory, 

Cases  dniibt-  .■  i • i i • r ' 

fiiiordis-  tlie  passage  of  ships  engaged  in  llie  service  ot  Avar 
Passage  of  tlirougli  liis  Avatei's,  and  the  preparation  of  hostile 
tioops.  expeditions  in  his  harbors,  if  he  granted  the  same 
to  both  sides.  All  noAV  admit  that  the  neutral  ought  to  refuse 


§172. 


BELLIGERENTS  AND  NEUTRALS. 


289 


any  of  these  privileges,  and  must  be  the  sole  judge  in  the 
case,  although  Vattel  inclines  to  think  that  innocent  transit 
in  extreme  cases  may  even  be  carried  through  with  force.^ 
JMany  publicists  still  A’iew  the  allowance  of  transit  as  reconcil- 
able with  the  notion  of  neutrality,  and  a number  of  treaties 
have  expressly  granted  it  to  certain  states.  Heffter,  who  held 
this  view  in  his  first  edition,  has  in  the  third  (§  147)  justly 
taken  the  opposite  side.  His  reasons  for  his  later  opinion 
against  allowing  transit  are  that  for  the  most  part  an  actual 
gain  accrues  from  it  to  one  partj^  and  that  it  will  rarely  hap- 
pen that  both  can  avail  themselves  of  it  during  a war,  with 
equal  advantage.  (Comp.  § 165,  supra.') 

§172. 

The  practice  of  neutrals  to  furnish  troops  to  belligerents,  or 
to  allow  them  to  enlist  troops  on  neutral  ground,  was 

^ TliG  ncu^i'&l 

formerly  common,  and  allowed.^  Tims,  six  thousand  fumi^^hing 
Scotchmen  joined  the  army  of  Gustavus  Adolphus. 

The  Swiss,  like  the  Arcadians  of  old,  for  centuries  furnished 
troops  to  many  foreign  sovereigns,  not  -without  detriment  to 
the  national  character,  as  Zwingli  and  other  patriots  have  felt ; 
and  still  in  recent  times  they  have  hired  out  soldiers  to  some 
of  the  Italian  states.  Several  old  treaties  gave  France  the 
preference  over  other  nations  in  levying  Swiss  troops,  and  that 
of  1521  allowed  her  to  enlist  a number  not  exceeding  1,600, 
who  could  not  be  recalled  by  the  authorities  at  home  so  long 
as  France  was  at  war.  A treaty  of  this  kind  Avas  made  as 
late  as  1803.  Heffter  thinks,  howeA’er,  that  since  the  neutral- 
ity of  1815  they  Avould  not  be  justified  in  agreeing  to  furnish 
troops  to  one  European  porr^er  against  another  after  the  out- 
break of  a AA-ar.  INlany  treaties  made  in  the  last  three  cen- 
turies have  renounced  the  poAver  thus  to  furnish  troops,  or 
have  put  an  end  to  foreign  enlistment,  Avhile  a number  of  an 
opposite  import  have  permitted  the  one  or  the  other.  By  the 
treaty  of  IMiinster  in  1648,  — Ave  quote  the  Avords  of  Mr.  Man- 

1 V.ittel,  ill.,  7,  §§  119-1.35. 

* See  Manning,  Book  III.,  pp.  166-181,  of  ed.  1. 

19 


290 


OF  THE  RELATIONS  BETWEEN 


§ 172. 


ning  (p.  174),  “it  ■sAas  agreed  that  none  of  the  contracting 
parties  should  afford  to  the  enemies  of  tlie  otlier  arms,  money, 
soldiers,  ])rovisions,  harbor,  or  passage,  the  riglit  being,  lio\v- 
e\’er  reserved  to  the  individual  states  of  the  empire  to  serve 
as  mercenaries  according  to  the  constitutions  of  the  empire.” 
This  custom  has  now  a lingering  existence  : it  is  forbidden  in 
some  countries  by  laAV,  and  is  justly  regarded  as  a violation 
of  neutrality. 

§ 178. 

International  law  does  not  require  of  the  neutral  sovereign 
that  he  should  keep  the  citizen  or  subject  within  the 
aiieutmTs  Same  sti’ict  lines  of  neutrality  Avhich  he  is  bound  to 
subjects  do.  q'pg  piuvato  person,  if  the  laAvs 

of  his  own  state  or  some  special  treaty  do  not  forbid,  can 
lend  money  to  the  enemy  of  a state  at  peace  Avith  his  OAvn 
countiy  for  purposes  of  Avar,  or  can  enter  into  its  service  as  a 
soldier,  Avithout  involving  the  government  of  his  country  in 
guilt.  The  English  courts,  hoAvever,  and  our  oavu  deny  that 
any  right  of  action  can  arise  out  of  such  a loan,  on  the  ground 
that  it  is  contraiy  to  the  hiAV  of  nations.  (Phillimore,  iii., 
§ 151 ; case  of  Kennett  v.  Chambers,  14  HoAvard’s  U.  S.  Rep., 
38.)  The  practice  of  individuals  belonging  to  a neutral  na- 
tion, serving  in  foreign  Avars  ^ aa’us  formerly  Avidely  diffused 
and  admitted  throughout  Europe,  and  is  not  of  easy  pre- 
Amntion,  if  prohibited  ; for  at  the  Avorst  the  individual  may 
renounce  his  country,  putting  himself  also  beyond  its  pro- 
tection. It  is  only  Avdren  a great  pressure  into  the  armies  of 
one  of  the  bellisrerents  is  on  foot  that  the  neutral  can  be 

O 

called  on  to  interfere.  In  the  ease  of  private  armed  vessels, 
the  usage  is  diffei'cnt.  It  is  noAV  regarded  as  a breach  of  neu- 
trality to  alloAv  a subject  to  accept  letters  of  marque  and  equip 
armed  vessels,  in  order  to  jn’ey  on  the  commerce  of  a bellig- 

1 Sntiiplimp.s  nonli'uls  li.Tvc  even  pent  military  officov.s  to  countries  ^clicre  war 
was  wafrinu',  iliat  ihcy  niiutt  learn  ilie  art  of  war.  To  .send  an  experienced  gen- 
eral on  Knell  a ini.ssinn,  or  to  esempt  liim  from  penalties  for  accepting  service 
aln  oad,  would  come  ulgli  to  giving'  assistance  to  one  of  the  parties.  (Hautefeuille, 
i.,  2.AS,  ed.  2.) 


§174. 


BELLIGERENTS  AND  NEUTRALS. 


291 


erent  friend  ; altliough  it  'would  be  impossible,  as  on  the  land, 
to  prevent  individuals  from  going  abroad  for  this  purpose. 
(Comp.  § 129.) 


§174. 


Neuti'als  Lave  a right,  1.  To  insist  that  their  teiTitory  shall 
be  inviolate  and  untouched  by  the  operations  of  j;igi,tsof 
war,  and  their  rights  of  sovereignty  uninvaded.  And 
if  violations  of  their  riglits  are  committed,  they  have  a right 
to  punish  the  offender  on  account  of  them,  or  to  demand  sat- 
isfaction from  his  government.  They  are  in  a manner  bound 
to  do  this,  because  otherwise  their  neutrality  is  of  no  avail, 
and  one  of  the  belligerents  enjo3's  the  privilege  of  impunity. 

Ill  1837,  the  Caroline^  a steamboat  employed  by  Canadian 
insurgents  in  carrying  passengers  and  munitions  of  oa.oeoftiio 
war  from  our  borders  to  the  opposite  shore,  was  cap- 
tured  and  destroyed  within  our  waters,  — tlie  leader  of  the  ex- 
pedition against  it  having  expected  to  find  it  within  British 
territory.  In  the  correspondence  between  the  governments  to 
which  this  act  gave  rise,  Mr.  Webster  said  that  such  a viola- 
tion of  neutrality  could  be  justified  only  by  a “necessity  of 
self-defense,  instant,  overwhelming,  having  no  choice  of  means, 
and  no  moment  of  deliberation.”  Lord  Ashburton  rightly 
contended  that  this  was  just  such  a case  of  necessity,  but  re- 
gretted that  some  explanation  and  apology  for  the  occurrence 
was  not  immediately  made.  And  so  the  matter  ended. 

In  1863,  the  Chesapeake,  a merchant  steamer  bound  for 
Portland,  Ale.,  was  seized  by  passengers,  who  turned  (^aaeof  the 
out  to  be  Confederates,  and  was  carried  to  a port  c/ifMpMfe. 
of  Nova  Scotia.  A United  States  vessel  found  her  there  de- 
serted by  the  pirates,  and  in  the  possession  of  some  of  her 
first  crew,  who  gave  her  up.  Two  British  subjects,  hired  by 
the  pirates,  being  on  board,  were  made  prisoners ; and  another 
of  the  pirates  was  seized  from  another  vessel  and  put  in  irons. 
The  vessel  being  taken  to  Halifax,  Mr.  Seward  offered  to  apol- 
ogize and  make  amends,  but  he  connected  with  it  the  extra- 

1 For  the  case  of  the  Virginius,  where  self-defense  on  the  high  sea  was  one  of 
the  prominent  points  to  be  alleged  on  behalf  of  Spain,  see  § 214. 


292 


OF  THE  RELATIONS  BETWEEN 


§ 174. 


clition  of  the  men  as  pirates  and  the  delivery  of  the  vessel 
to  the  OAvnei's.  The  proposition  of  IMr.  Seward  was  not  ac- 
cepted, on  the  ground  that  the  acts  done  in  British  territory, 
being  a gross  violation  of  neutrality,  authorized  the  demand 
to  deliver  up  the  vessel  formally  to  the  authorities,  and  to  set 
free  the  men  upon  British  soil  with  an  apology  and  disclaimer 
on  the  part  of  the  United  States.  The  vessel  and  cargo  were 
finally  restored.  The  transaction  on  our  part  was  a clear  vi- 
olation of  neutrality. 

Equally  illegal  and  more  highhanded  was  the  cutting  out  of 
the  Confederate  steamer  Florida  under  the  guns  of  a Brazilian 
corvette.  For  this  the  minister  of  the  United  States  apolo- 
gized, and  a fiigate  was  sent  to  the  port  to  salute  the  Brazil- 
ian flag.  For  the  first  case  comp.  Dana  on  Wheaton,  note 
207. 

Earlier  cases  of  violation  of  neutral  territory  that  deserve 
mention,  belong  to  our  war  with  Great  Britain  in  1812-1815. 
The  United  States  frigate  Essex,  lying  dismantled  in  the  har- 
bor of  Valparaiso,  was  attacked  and  compelled  to  surrender 
by  the  British  ship  Phoebe.  Tlie  Levant  in  the  same  war  was 
chased  into  Porto  Praya  and  captured  by  British  vessels,  as 
also  the  General  Armstrong  was  destroyed  in  the  harbor  of 
Fayal  by  the  British.  In  this  latter  case  the  United  States 
made  demands  on  Portugal  for  indemnification;  but  Louis 
Napoleon,  to  whom  the  case  was  submitted  for  liis  arbitration, 
decided  that  it  was  not  due,  because  the  vessel  did  not  seek 
for  protection,  but  resisted  force  by  force.  That  is,  an  offense 
was  committed  against  Portugal  by  the  British  force,  but  the 
vessel  took  its  own  defense  into  its  own  hands,  and  the  neu- 
tral was  not  bound  to  interfere.  In  another  case  where  some 
French  vessels  had  fled  to  the  bay  of  Lagos,  and  were  seized 
by  the  English,  indemnification  was  demanded,  but  Great 
Britain  refused  itd 

No  cruiser  is  authorized  to  chase  a vessel  within  or  across 
neutral  waters,  and  all  captures  so  made,  or  made  in  viola- 
tion of  the  neutral  laws  for  maintaining  neutrality,  must  be 
1 For  th«  American  case.'},  comp.  Dana’s  Wheaton,  note  208. 


§176. 


BELLIGERENTS  AND  NEUTRALS. 


293 


regarded  as  illegal  ■with  respect  to  tlie  neutral,  although  not 
illegal  Avith  respect  to  the  enemy.^  If  such  a prize  is  brought 
into  any  of  the  neutral’s  ports,  he  is  authorized  to  seize  and  re- 
store it.  If  it  be  carried  into  a port  of  another  country,  he  has 
a right  to  demand  its  restoration,  and  the  prize  court  of  the 
belligerent  is  bound  to  respect  the  objection.  If  the  neutral 
fails  to  exercise  his  rights  in  these  respects,  the  government  of 
the  vessel  which  has  been  thus  captured  may  complain  or  even 
retaliate.  The  Avrong-doing  vessel  may  afterAvards  have  en- 
trance into  the  Avaters  of  the  injured  neutral  refused  to  it, 
since  all  admission  of  Avar-vessels  into  neutral  Avaters,  unless 
required  by  treaty,  depends  on  comity  alone.  Or  its  govern- 
ment, if  the  neutral  prefer,  or  is  forced  to  take  that  mode  of 
redress,  may  be  required  to  give  satisfaction  in  regard  to  the 
injury. 


§ 

2.  Neutrals  can  claim  from  the  belligerents,  during  war,  all 
that  respect  for  their  flag,  for  their  representatives,  for  their 
jiroperty,  and  the  property  of  their  citizens  or  subjects,  Avhen 
employed  in  the  laAvful  operations  of  Avar,  to  which  they  have 
a right  during  peace.  To  pi-eclude  the  ambassadors  of  the 
neutral  fiom  egress  and  ingi-ess  into  enemy’s  territory  is  un- 
friendly, although  the  enemy’s  envoys  to  the  neutral  may'  be 
seized  except  on  neutral  soil  or  ships.  (§  97.)  The  property 
of  neutrals  has  sometimes  been  AATongfully  seized  for  govern- 
ment purposes  in  eases  Avhere  necessity  Avas  pleaded  for  so  do- 
ing, but  not  Avithout  the  prospect  held  out  of  compensation. 
And  this,  AAdiich  Louis  XIV.  is  said  to  have  pronounced  to  be  a 
right,  has  been  extended  to  their  seamen.  The  right  of  pre- 
emption in  Avar  will  be  considered  in  another  place.  And  the 
restrictions  on  neutral  trade  will  be  the  subject  of  a separate 
chapter. 


176. 


Every  nation  is  bound  to  pass  laAvs  whereby  the  territory 
and  other  rights  of  neuti’als  shall  be  secured,  and  has  a right 
1 Comp.  tVildman,  ii.,  147. 


294 


OF  THE  EELATIONS  BETWEEN 


§ 176. 


to  demand  security  for  itself  in  the  same  manner.  Nor  is 
Municipal  there  any  deficiency  of  such  laws  in  Christendom, 
for^^ng'neu-  TIiiis  Great  Britain,  by  an  act  passed  in  1819,  for- 
tiuhty.  bade  British  subjects  to  enter  the  service  of  foreign 
states  under  penalty  of  fine  and  imprisonment,  although  such 
an  act  of  individuals,  as  we  have  seen,  is  not  a violation  of 
neutrality. 

The  United  States  by  various  acts,  as  by  those  passed  in 
1794,  1818,  and  1838,  have  endeavored  to  prevent  injuries 
to  neutral  and  friendly  powers,  as  well  as  violations  of  our 
own  rights,  whether  by  citizens  or  foreigners.  Thus,  (1.)  It 
is  made  a misdemeanor  for  a citizen  to  accept  or  exercise 
within  our  territory  a commission  from  a foreign  power  in  a 
war  against  a state  at  peace  Avitli  us.  (2.)  It  is  unlaAvful  for 
any  one  to  enlist,  or  induce  another  person  Avithin  our  bor- 
ders to  enlist,  or  eno'aGfe  him  to  cro  abroad  to  enlist  in  foreicen 
service  against  a fi-iendly  pawer ; or  to  institute  Avithin  our 
territory  any  military  expedition  by  land  or  sea,  against  any 
such  poAver  ; or  to  augment  the  force  of  any  vessel  having 
such  hostile  intent ; and  the  vessels  engaged  in  such  an  en- 
terprise by  sea  are  subject  to  forfeiture.  (3.)  No  belligerent 
vessels  are  alloAA'ed  to  jarovide  themselves  Avith  military  stores, 
or  with  anything  not  equally  applicable  to  commerce  and  to 
Avar.  When  vessels  of  the  Uvo  belligerents  are  in  our  har- 
bors together,  they  are  forbidden  to  depart  Avithin  tAventy- 
four  hours  of  one  another.  And  the  President  is  empoAvered 
to  use  force  to  send  out  of  the  Avaters  of  the  United  States 
such  vessels  as  ought  not  to  remain  Avithin  onr  limits,  as  Avell 
as  to  compel  the  observance  of  our  neutrality  laAvs  in  general.^ 
In  short  our  Iuaa^s  are  not  bad.  May  no  officials  ever  make 
a purposely  ineffectual  display  of  maintaining  these  laAA'S,  and 
connive  at  their  violation  in  secret. 

^ Kent,  i.,  122-12.3,  Lect.  vi.,  whom  I have  used  in  tliis  summary  of  our  neu- 
trality laws.  For  captures  made  by  ships  that  have  committed  a breacli  of  our 
neutraliiy  laws,  comp.  § 174,  supra.  Illejjal  augmentation  of  force  affects  cap- 
tures made  on  the  ci  uise  for  which  the  augmentation  took  place,  but  not  after- 
ward. (7  Wheaton  Eep  , .648.) 


§ 177. 


BELLIGERENTS  AND  NEUTRALS. 


295 


§ 177. 

The  act  of  59  Geo.  III.,  chap.  69,  commonly  called  the 
Foreign  Enlistment  Act,  was  framed  after  our  Neu-  British  For- 
trality  Act,  of  1817,  but  differed  from  it  in  two  re- 
spects : First,  in  being  expressed  in  more  stringent 
terms ; and  again,  in  omitting  two  provisions.  One  of  these 
is,  that  in  our  act  bonds  are  required,  in  the  case  of  armed 
vessels  sailing  out  of  our  ports  which  belong  wholly  or  in  part 
to  our  citizens,  in  double  the  amount  of  the  vessel  and  its 
cargo,  including  the  armament,  to  the  intent  that  the  said  ves- 
sel shall  not  be  employed  by  such  owners  to  cruise  against 
the  subjects  or  property  of  any  power  Avith  which  the  United 
States  are  at  peace.  The  other  gives  to  collectors  of  customs 
poAver  to  detain  vessels  built  for  purposes  of  Avar,  of  Avhich 
the  cargo  shall  consist  principally  of  arms  and  munitions  of 
Avar,  Avhenever  it  is  probable  to  them  that  such  vessels  are  in- 
tended for  cruising  against  the  subjects  or  property  of  friendly 
states.  Such  detention  is  to  continue  until  the  President  make 
a decision  thereon,  or  until  the  OAvnei’s  shall  give  bonds,  ac- 
cording to  the  requirements  of  the  preceding  section.  For  a 
comparison  of  the  tAvo  acts,  see  Mr.  Bemis  on  “ American 
Neutrality,  its  Honorable  Past,  its  Expedient  Future,”  Boston, 
1866 ; and  Mr.  Mountague  Bernard’s  “ British  Neutrality,” 
403-406. 

Several  reasons  seemed  to  the  British  Administration  in 
1867,  to  make  it  important  to  revise  the  act  just  mentioned. 
Commissioners  Avere  appointed  to  consider  the  “ character, 
Avorking,  and  effect  of  the  neutrality  laws  of  the  realm,”  Avho 
made  a report  in  1868.  On  the  basis  of  their  report,  and 
embodying  its  principal  suggestions,  a project  of  a laAv  Avas 
submitted  to  Parliament,  and  a laAv  Avas  passed  August  9, 
1870,  by  Avhich  the  earlier  act  was  repealed.  This  laAV  is  en- 
titled “ An  Act  to  regulate  the  conduct  of  her  Majesty’s  sub- 
jects during  the  existence  of  hostilities  betAveen  foreign  states 
Avith  Avhich  her  Majesty  is  at  peace.”  It  may  be  cited,  also, 
for  all  purposes,  as  “The  Foreign  Enlistment  Act,  1870.” 


296 


OF  THE  KELATIONS  BETWEEN 


§ 177. 


The  parts  of  this  act  most  Avorthy  of  notice  are  (1.)  Those 
relating  to  illegal  shiphuilcling  and  illegal  expeditions.  (§§  8- 
13.)  The  folloAving  acts,  — building,  agreeing  to  build,  or  caus- 
ing to  be  built,  equipping,  dispatching,  issuing  any  commission 
for  any  ship,  with  intent  or  knoAvledge  or  reasonable  cause  to 
believe  tl}at  the  same  shall  or  will  be  employed  in  the  military 
or  naA^al  service  of  any  state  at  war  with  any  friendly  state, 
subject  the  offender  to  either  or  both  fine  or  imprisonment, 
the  latter  Avitli  or  Avithout  bard  labor,  at  the  court’s  discretion, 
and  not  exceeding  two  years.  The  ship  itself  shall  be  for- 
feited, except  AAdien  the  contract  to  do  any  of  these  acts  Avas 
made  before  the  commencement  of  Avar  between  such  states. 
But  tlie  person  concerned  may  save  himself  from  penalty,  if 
he  make  knoAvn  to  the  Secretary  of  State  Avhat  he  is  doing, 
and  all  required  particulars  touching  his  contract ; and  if  also 
he  give  such  security  and  take  or  permit  to  be  taken  such 
other  measures  as  the  Secretary  shall  prescribe,  for  insuring 
that  such  ship  shall  not  be  removed  Avithout  license  until  the 
end  of  such  Avar. 

The  burden  shall  lie  on  the  builder  of  a ship,  built  for  or 
delivered  to  such  a foreign  state  or  to  its  agent,  or  paid  for 
by  either  of  them,  and  employed  for  the  purposes  of  Avar,  of 
'proving  that  he  did  not  knoAv  that  such  Avas  the  destination  of 
the  A^essel.  (§  9.) 

§ 10  forbids,  under  the  same  penalties,  augmenting  the  Avar- 
like  force  of  any  such  ship  ; and  § 11  forbids  naval  and  mili- 
tary expeditions  against  friendly  states.  All  ships  and  their 
equipments,  Avith  all  instruments  of  Avar  forming  a part  of 
such  an  expedition,  shall  be  forfeited. 

7\ny  vessels  captured  in  violation  of  the  neutrality  of  the 
realm  Avithin  the  soA^ereign’s  territorial  jurisdiction,  or  by  any 
ship  built,  etc.,  contrary  to  this  act,  if  brought  into  British 
dominions  by  the  captor  or  his  agent,  or  by  any  one  coming 
into  possession  of  it,  with  knoAvledge  that  it  was  prize  of  Avar 
so  captured,  may  be  seized,  detained,  and,  on  due  proof,  re- 
stored to  the  original  OAvner  or  his  agent,  on  application  of  the 
original  OAvner  or  his  agent,  or  of  any  person  authorized  in  that 


§ 177. 


BELLIGEEENTS  AND  NEUTKALS. 


297 


behalf  by  the  government  of  the  foreign  state  to  wbicb  the 
owner  belongs.  (§  14.) 

(2.)  From  the  sections  relating  to  legal  procedure  (16-29) 
we  select  the  following  particulars  : — 

All  measures  for  the  condemnation  and  forfeiture  of  a ship, 
its  equipment,  arms,  etc.,  shall  require  the  sanction  of  the  Sec- 
retary of  State,  or  such  “ chief  executive  authority  ” as  the 
act  mentions,  and  shall  take  place  in  the  Court  of  Admiralty, 
. and  nowhere  else.  (§  19.)  The  words  “ chief  executive  au- 
thority ” denote  the  Lord-Lieirtenant  of  Ireland,  or  his  chief 
secretary,  the  governor  in  any  British  possession,  the  lieuten- 
ant-governors of  the  Channel  islands,  and  of  the  Isle  of  Man. 
(§  26.) 

If  the  secretary  or  any  of  these  chief  executive  officers  is 
satisfied  that  there  is  reasonable  and  probable  cause  for  be- 
lieving that  a ship  has  been  or  is  being  built,  commissioned, 
etc.,  in  violation  of  any  of  the  provisions  of  the  act  (§§  8- 
12),  he  is  empowered  to  issue  a wari'ant  stating  his  belief, 
upon  which  warrant  certain  “ local  authorities  ” may  seize, 
search,  and  detam  such  ship,  until  it  has  been  condemned  or 
released.  Then,  on  application  of  the  owner  or  his  agent,  the 
Court  of  Admiralty  is  to  try  the  case,  and  if  the  applicant 
fails  to  establish  the  Innocence  of  the  transaction  in  regard  to 
the  ship,  it  shall  be  detained,  until  released  by  the  secretary  or 
other  executive  officer  above  specified.  The  court,  where  no 
proceedings  are  pending,  may  release  the  detained  vessel,  on 
the  OAvner  giving  security  to  the  satisfaction  of  either  that 
the  ship  shall  not  be  employed  contrary  to  the  act.  The  Sec- 
retary of  State  or  chief  executive  authority  may  do  the  same 
under  the  same  security,  or  even  Avithout  security,  if  he  think 
fit  so  to  act.  If,  on  trial,  it  appears  to  the  court  that  no  good 
ground  for  detention  existed,  the  court  has  poAver  to  declare 
that  the  OAvner  is  to  be  indemnified  by  the  payment  of  costs 
and  damages  in  respect  of  the  detention  ; and  Avhen  the  Sec- 
retary of  State  by  his  order  releases  a ship,  the  court  has 
poAver  to  make  a like  order  for  the  indemnity  of  the  OAvner. 
(§  23.) 


298 


OF  THE  KELATIONS  BETWEEN 


§ 177. 


Certain  “local  authorities,”  namely,  any  officer  of  customs 
in  the  United  Kingdom,  any  similar  functionary  or  public  offi- 
cer in  any  British  possession,  any  commissioned  officer  on  full 
pay  in  tlie  military  or  the  naval  service,  subject  respecti\ ely 
to  anj'  special  or  general  instructions  of  certain  superiors,  are 
empowered  to  seize  or  detain  any  ship  liable  to  be  seized  or 
detained  under  the  act.  (§  21.)  They  are  required  to  do 
this  when  they  find  reason  to  believe  that  a sliip  has  been  or 
is  being  built,  etc.,  contrary  to  the  act,  and  forthwith  to  make 
the  detention  known  to  the  secretary,  or  chief  executive  au- 
thority. And  the  provisions  of  § 23  in  regard  to  the  powers 
of  the  secretary,  etc.,  and  of  the  Court  of  Admiraltjq  are  here 
repeated.  (§  24.) 

The  Secretary  of  State,  or  the  chief  executive  authority, 
may,  by  warrant,  empower  any  person  to  enter  any  dock-yard 
or  other  place,  and  to  inquire  as  to  the  destination  of  any 
ship  which  may  appear  to  him  intended  to  be  employed  in 
violation  of  the  act,  and  he  may  search  the  same.  (§  25.) 

No  local  authority  shall  be  responsible,  civilly  or  criminally, 
in  respect  to  the  seizure  or  detention  of  any  ship  in  pursuance 
of  the  act.  (§  28.) 

Nothing  in  the  act  subjects  to  forfeiture  any  commissioned 
ship  of  any  foreign  state,  or  gives  to  any  British  court  any 
jurisdiction  over  such  ship  which  it  would  not  have  had  with- 
out the  passage  of  the  act.  (§  32.)  And  in  the  phrase  “ for- 
eign state,”  the  act,  in  an  “ interpretation  clause,”  declares 
itself  to  include  “ any  foreign  prince,  colony,  province,  or  part 
of  any  province  or  people,  or  any  person  or  persons  exercising, 
or  assuming  to  exercise,  the  powers  of  government  in  or  over 
any  foreign  country,  colony,  province,  or  part  of  any  province 
or  people.” 

§ 178. 

During  the  late  Crimean  war  it  came  to  light  that  certain 
Case  of  the  British  consuls  were  persuading  persons  within  our 
baMa^or^  bouncls  to  go  out  of  the  United  States  in  order  to 
1856.  enlist  in  that  service,  and  that  the  minister  at  Wash- 

ington was  aiding  therein.  It  could  not  be  complained  of,  if 


§ 179. 


BELLIGEEENTS  AND  NEUTKALS. 


299 


tlie  United  States  gOYernment  showed  displeasure  at  sncli  pro- 
ceedings, demanded  his  removal,  and  even  ceased  to  hold 
communication  with  him  as  the  agent  of  the  British  govern- 
ment. In  wdiat,  now,  did  his  offense  consist,  — in  a breach  of 
our  law  only  or  in  a violation  of  international  law  ? In  an- 
swer it  may  be  said,  that  if  the  earlier  usage  is  to  decide,  there 
was  no  direct  breach  of  international  law ; if  the  more  modern, 
there  was  a breach.  But  supposing  this  to  be  doubtful,  in 
breaking  our  laws  of  neutrality,  which  have  the  peculiar  char- 
acter of  supporting  the  laws  of  nations,  and  that  too  when  he 
was  the  representative  of  another  sovereignty,  he  attacked  the 
sovereignty  of  the  nation,  and  in  this  way  came  in  conflict 
with  law  international,  which  aims  to  secure  the  sovereignty 
of  all  the  nations  who  acknowledge  it.  And  even  if  our  law 
could  have  been  evaded  by  inducing  men  to  go  abroad  for  an- 
other object,  and  there  persuading  them  to  enlist  in  a war 
against  one  of  our  friends,  there  would  still  have  remained 
ground  of  complaint  against  the  agents  in  such  a scheme,  as 
disturbers  of  our  relations  with  a friendly  power. ^ 

§ 179. 

A foreign  power,  as  we  have  seen  (§§  40,  42),  may  assist  a 
state  to  repress  a rebellion,  and  may  not  assist  re- 

1 , , r-.i  Relation  of 

voiters  themselves,  but  when  these  have  fairly  ere-  neutrals  to 

1 . , . , tlie  parties 

ated  a new  government,  may  enter  into  relations  with  in  an  inter- 
it,  without  unfriendliness  towards  the  original  state. 
Meanwhile,  until  the  fact  of  a new  state  is  decided  by  the 
issue  of  the  struggle,  the  position  of  neutrals  is  a delicate  one, 
and  one  to  which  little  attention  has  been  paid  by  winters  on 
the  law  of  nations.  Theoretically  we  say, 

1 Yet  it  seems  that  a consul  may  raise  money  in  a neutral  state,  and  transport 
to  his  own  state  such  of  his  countrymen  as  are  recalled  to  do  military  service. 
This  was  done  by  the  German  consuls  in  this  country  in  1870,  who  sent  large 
numbers  of  their  countrymen  home  to  serve  in  the  landwehr  without  l)eing  consid- 
ered as  violating  our  neutrality,  probably  because  they  were  not  American  citi- 
zens. Calvo  (ii.,  394)  remarks  on  this  that  the  consuls  entered  into  no  recruiting 
forbidden  by  international  law,  while  the  neutral  ves.scls  wliich  carried  these  men 
compromised  the  neutrality  of  their  flag  and  exposed  themselves  to  capture.  — 
T.  S. 


300 


OF  THE  RELATIONS  BETWEEN 


§ 179. 


(1.)  The  relation,  if  the  foreign  power  stands  aloof,  is  not 
that  of  neutrality,  between  states,  but  of  neuti'ality  between 
parties  om  of  loliich  is  a state,  and  the  other  trying  to  become  a 
state. 

(2.)  Tlie  foreign  power,  therefore,  cannot  plead  the  laws  of 
neutrality  for  treating  both  parties  alike,  for  the  one  is  an 
acknowledged  state,  the  other  is  not.  Thus  whatever  favors 
it  has  granted  to  the  cruisers  of  the  friendly  state  it  is  not 
bound  to  grant  to  the  revolters,  or  rather,  it  is  bound  not  to 
grant  to  them  the  same  privileges,  for  by  so  doing  it  admits 
their  right  to  prey  on  the  commerce  of  its  friend,  — which 
only  states  can  do. 

(3.)  In  a certain  sense  the  foreign  power  must  regard  the 
revolters  as  belligerents,  entitled  to  all  those  rights  which  hu- 
manity demands,  as  that  of  asylum  for  troops  or  vessels  in  dis- 
tress, or  fleeing  from  a superior  power,  — the  same  sorts  of 
rights  which  would  be  granted  to  political  exiles.  The  vessels 
of  such  revolters  cannot  be  regarded  as  piratical,  for  their  mo- 
tive is  to  establish  a new  state,  while  that  of  pirates  is  plunder. 
A pirate  never  ends  his  war  with  mankind.  They  fight  for 
peace.  (Compare  § 145.) 

§ 180- 

(4.)  The  subject  of  the  recognition  of  a territory  in  revolt 
against  the  established  government,  as  being  a bellig- 
S^arevoit^d  ereiit  power,  has  lately  assumed  considerable  political 
anen'ig^-^  importance.  England  led  the  way  in  thus  recogniz- 
ing  the  Confederate  States  by  the  Queen’s  proclama- 
tion of  neutrality,  published  May  13,  1861  ; France  followed 
on  the  10th  of  June ; and,  in  the  course  of  the  summer,  a 
number  of  other  states  made  similar  declarations.  The  proc- 
lamation of  neutrality  was  not  at  first  imputed  on  this  side  of 
the  water  to  hostility,  as  it  was  afterAvard.  The  British  orders 
of  June,  1861,  Avhich  prohibited  armed  vessels  of  either  party 
from  carrying  prizes  into  British  ports  — orders  Avhich  grew 
out  of  the  proclamation,  and  implied  the  recognition  of  a state 
o.f  Avar  — Avere  not  at  first  unwelcome  to  our  Secretary  of 


§ 180. 


BELLIGERENTS  AND  NEUTRALS. 


301 


State  ; he  said  that  they  “ would  probably  prove  a deathblow 
to  southern  privateering.”  But  a time  soon  came  when  the 
proclamation  was  considered  to  be  hasty,  intended  for  our 
hurt,  the  great  source  of  hope  to  the  Confederates. 

(a.)  In  considering  the  general  subject,  we  remark,  Jirst, 
that  while  nations  may  take  sides  against  a revolutionary 
movement  in  another  state,  if  invited  so  to  do  by  the  govern- 
ment (comp.  § 42),  they  have  a right  to  remain  neutral,  and 
ill  almost  all  modern  movements  of  this  kind  nations  have 
judged  it  wisest  and  best  to  take  a neutral  attitude.  Only 
when  great  cruelty,  on  the  part  of  the  established  government, 
rouses  the  indignation  of  mankind,  have  they  thought  best  to 
interfere.  This  neutrality  was  our  position,  notwithstanding 
our  declared  sympathy,  during  the  long  and  slow  struggle  of 
Spain  with  its  American  colonies. 

(d.)  A proclamation  of  neutrality,  or  by  whatever  name  a 
notification  of  a war  be  called,  declares  that  a state  of  war  ex- 
ists between  two  certain  parties  ; announces,  therefore,  that,  in 
the  exercise  of  the  rights  of  war,  they  may  interfere  with  neu- 
tral commerce  within  certain  limits  ; warns  subjects  or  citizens 
against  unlawful  assistance  of  either  party  in  the  war ; and, 
perhaps,  makes  known  what  will  be  permitted  or  forbidden  to 
the  belligerents  within  the  waters  or  other  territory  of  the 
power  making  the  proclamation.  If,  after  this,  a subject  of 
such  a power  should  be  captured  in  a war-vessel  of  one  of  the 
belligerents,  he  could  not  be  punished  as  a pirate  by  the  law 
of  the  captor’s  state  without  giving  cause  for  complaint  of  in- 
jury and  redress,  much  less  could  he,  by  the  law  of  nations. 
And  to  this  it  may  be  added  that,  by  such  a proclamation,  a 
nation  takes  from  itself  the  power  of  complaining  of  the  effects 
of  war  between  the  parties  in  question  on  its  vessels  and  goods, 
because  by  the  act  it  declares  war  to  exist. 

(c.)  Such  a proclamation,  of  course,  has  no  look  towards 
recognition  of  a territory  in  revolt  as  a new  state,  nor  does  it 
pretend  to  judge  of  the  right  and  wrong  of  the  struggle.  It  is 
simpljr  a declaration  of  a fact. 

(d.)  But  there  may  be  a difiiculty  in  ascertaining  when  the 


302 


OF  THE  KELATIONS  BETWEEN 


§ 180. 


fact  of  war  begins,  and  this  difficulty  is  the  greater  in  cases  of 
insurrection  or  revolt,  where  many  of  the  antecedents  and  pre- 
monitory tokens  of  war  are  wanting,  where  an  insurrection 
may  be  of  little  account  and  easily  suppressed,  or  war  may 
burst  out  full-blown,  it  may  be,  at  once.  Our  government 
has  more  than  once  professed  to  govern  its  action  by  the  fol- 
lowing criteria  expressed  in  Mr.  Monroe’s  words  relating  to 
the  Spanish  South  American  revolts : “ As  soon  as  the  move- 
ment assumes  such  a steady  and  consistent  form  as  to  make 
the  success  of  the  provinces  probable,  the  rights  to  which  they 
were  entitled  by  the  law  of  nations,  as  equal  parties  to  a civil 
war,  have  been  extended  to  them.”  But  this  rule  breaks 
down  in  several  places.  The  probability  is  a creature  of  the 
mind,  something  merely  subjective,  and  ought  not  to  enter 
into  a definition  of  what  a nation  ought  to  do.  Again,  the 
success  does  not  depend  on  steadiness  and  consistency  of  form 
only,  but  on  relative  strength  of  the  parties.  If  you  make 
probability  of  success  the  criterion  of  right  in  the  case,  you 
have  to  weigh  other  circumstances  before  being  able  to  judge 
which  is  most  probable,  success  or  defeat.  Would  you,  if  you 
conceded  belligerent  rights,  withdraw  the  concession  whenever 
success  ceased  to  be  probable  ? And,  still  further,  such  prov- 
inces in  revolt  are  not  entitled  by  the  law  of  nations,  to  rights 
as  equal  parties  to  a civil  war.  They  have  properly  no  rights, 
and  the  concession  of  belligerency  is  not  made  on  their  ac- 
count, but  on  account  of  considerations  of  policy  on  the  part 
of  the  state  itself  which  declai’es  them  such,  or  on  grounds  of 
humanity. 

(c.)  Precedents  are  to  be  drawn  chiefly  from  modern  times. 
The  revolt  of  the  Low  Countries  was  hardly  an  analogous 
case,  for  they  were  states  having  their  especial  charters,  not 
connected  with  Spain,  except  so  far  as  the  King  of  Spain  was 
their  suzerain.  In  our  Revolutionary  War  precedent  was  not 
all  on  one  side.  Great  Britain  stoutly  declared  Paul  Jones  to 
be  a pirate,  because  he  Avas  a British  subject,  under  commission 
from  revolting  colonies,  and  Denmark  agreed  to  this.  In  the 
South  American  revolutions  the  concessions  of  belligerent 


§ 180. 


BELLIGERENTS  AND  NEUTRALS. 


303 


rights  were  given  freely  by  neutrals,  most  freely  by  the  United 
States  ; and  as  for  proclamations,  our  government  went  so  far 
as  to  issue  one  in  1838  “ for  the  prevention  of  unlawful  inter- 
ference in  the  civil  war  in  Canada,”  where  no  civil  or  military 
organization  had  been  set  up.  The  true  time  for  issuing  such 
a declaration,  if  it  is  best  to  issue  it  at  all,  is  when  a revolt 
has  its  organized  government,  prepared  by  law  for  war  on 
either  element,  or  on  both,  and  when  some  act,  involving  the 
open  intention  and  the  fact  of  war,  has  been  performed  by  one 
or  both  of  the  parties.  Here  are  two  facts,  the  one  political, 
the  other  pertaining  to  the  acts  of  a political  body.  The  fact 
of  war  is  either  a declaration  of  war,  or  some  other  implying 
it,  like  a proclamation  of  blockade,  or,  it  may  be,  actual  armed 
contest. 

(/.)  Was  there,  then,  a state  of  war  when  the  British  pi’oc- 
lamation  of  neutrality  was  given  to  the  world,  or  did  the  facts 
of  the  case  justify  the  British  Government  in  the  supposition 
that  such  a state  of  war  existed  ? Here  everything  depends 
on  facts,  and  on  opinions  derived  from  facts.  We  find  opinions 
expressed  by  eminent  men  among  ourselves  iu  the  first  half  of 
May,  1861,  that  war  had  already  begun,  which  some  of  them 
conceived  of  as  beginning  with  the  attack  on  Fort  Sumter. 
AVe  find  a number  of  States  seceding  from  the  Union,  whose 
territory  made  a continuous  whole,  which  formed  a constitu- 
tion, and  chose  public  officers,  a President  among  the  rest. 
This  President  made  a proclamation  touching  letters  of  marque 
and  reprisal,  and  told  his  Congress  that  two  vessels  had  been 
purchased  for  naval  warfare.  We  find,  next,  two  proclama- 
tions of  the  President  of  the  United  States,  one  of  April  15, 
calling  for  a large  force  of  the  militia  of  the  States,  and  an- 
other of  April  19,  announcing  an  intention  to  set  on  foot  a 
blockade,  after  the  proclamation  of  the  Confederate  President, 
inviting  letters  of  mai’que  and  reprisal,  had  become  known  at 
AA^ashington,  On  the  6th  of  May  the  Southern  Congress  sanc- 
tioned the  proclamation  concerning  letters  of  marque,  recog- 
nized a state  of  war,  and  legislated  on  cruisers  and  capture. 
AA^e  pass  over  many  acts  of  violence,  such  as  seizures  of  forts 


304 


OF  THE  RELATIONS  BETWEEN 


§ 180. 


and  other  public  propert}^  Avithin  the  Confederate  States.  In- 
telligence of  President  Lincoln’s  blockade  reached  London  on 
the  evening  of  May  2.  Copies  of  it  Avere  there  received  be- 
tAveen  the  5th  of  May  and  the  11th.  On  the  13th  the  Queen’s 
proclamation  of  neutrality  AA^as  issued. 

The  President’s  proclamation  of  blockade  announced  a 
measure  AAdiich  might  liaA'e  important  international  conse- 
quences. It  Avas,  in  fact,  a declaration  of  a state  of  Avar  on 
the  sea.  “He  deemed  it  advisable,”  he  says,  “to  set  on  foot 
a blockade,  in  pursuance  of  the  laAVS  of  the  United  States  and 
of  the  laAvs  of  nations.”  And  vessels  exposing  themselves  to 
penalty  for  violating  the  blockade,  Avould  “ be  captured  and 
sent  to  the  nearest  convenient  port  for  such  proceeding  against 
them  and  their  cargoes  as  prize,  as  might  be  deemed  advisa- 
ble.” SeA'eral  neutral  vessels  Avere  captured  betAveen  April  19 
and  July  13,  on  Avhich  last  day  Congress  sanctioned  the  pro- 
ceedings of  the  Government.  The  validity  of  the  captures 
came  before  the  Supreme  Court,  and  the  question  Avhen  the 
Avar  began  became  a very  important  one.  The  court  decided 
that  the  President  had  a right, /itre  belli,  to  institute  a block- 
ade of  ports  in  the  possession  of  the  rebellious  States,  and  that 
blockade  Avas  an  act  of  Avar. 

It  Avould  seem,  then,  that  if  the  British  Government  erred 
in  thinking  that  the  Avar  began  as  early  as  Mr.  Lincoln’s  proc- 
lamation in  question,  they  erred  in  company  Avith  our  Supreme 
Court.  (See  the  “Alabama  Question”  in  the  “Ncav  Eng- 
lander” for  July,  1869,  Black’s  Reports,  ii.,  635  et  seq.,  Dana 
on  Wheaton,  374-375,  LaAvrence’s  Wheaton,  2d  ed.,  snpplem., 
p.  13,  and  Pomeroy’s  “ Introd.  to  Constit.  LaAA',”  §§  447-453.) 


§ 181. 

(5.)  What  measures  can  the  state  at  Avar  Avith  a part  of  its 
Right  of  a subjects  take  in  regard  to  foreign  trade  Avith  revolted 
t^tSwith  ports  ? To  say  that  it  cannot  apply  the  rules  of 
revoiters.  blockude.  Contraband,  and  search,  because  the  ports 
are  its  own,  is  mere  pettifogging.  But  can  it  close  these 
ports  by  an  act  of  the  Government,  as  it  once  opened  them  ? 


§ 181. 


BELLIGERENTS  AND  NEUTRALS. 


305 


At  first  view  it  seems  hard  to  refuse  this  right  to  a nation,  but 
the  better  opinion  is  that  foreigners,  by  having  certain  avenues 
of  trade  open  to  them,  have  thereby  acquired  rights.  (§  28.) 
The  nation  at  war  within  itself  must  overcome  force  by  force, 
but  this  method  of  closing  ports  supersedes  war  by  a stroke  of 
the  pen.  It  is  the  fact  of  obstruction  in  the  ordinary  channels 
of  trade  which  foreign  nations  must  respect.  If  the  state  in 
question  cannot  begin  and  continue  this  fact,  it  must  suffer  for 
its  weakness. 

But  international  law  does  not  make  all  these  distinctions. 
The  colonies  of  Spain,  as  yet  unrecognized,  were  regarded  by 
us  as  “belligerent  nations^  having,  so  far  as  concerns  us,  the 
sovereign  rights  of  war,  and  entitled  to  be  respected  in  the  ex- 
ercise of  those  rights  ? ” And  so  England  and  France  acted 
in  the  war  of  the  secession.  (7  Wheaton  Rep.,  337.) 

(6.)  In  the  late  war  an  experiment  was  made  of  supplement- 
ing the  blockades  at  Charleston  and  Savannah  by 

o Ri  ht  of 

sinking  stone-ships  in  channels  of  entrance  into  the  blocking  up 
ports.  At  the  instance  of  British  merchants  their  voued'couu- 
Government  made  complaints  against  this,  as  being 
detrimental  to  the  general  and  permanent  interests  of  com- 
merce, to  which  our  Secretary  of  State  replied  that  the  United 
States  would  regard  it  as  a duty  to  remove  the  obstructions 
as  soon  as  the  Union  should  be  restored. 

Had  the  United  States  a right  to  do  this,  or  had  neutrals 
acquired  a right  of  access  to  those  harbors  subject  only  to  the 
temporary  hindrances  of  war  ? As  far  as  the  sovereign’s  right 
is  concerned,  it  is  clear  that,  for  national  preservation,  meas- 
ures of  force  within  the  borders  of  a state  are  not  subjects  of 
complaint  from  foreigners,  any  more  than  blockade  or  visita- 
tion on  suspicion  of  contraband  upon  the  water.  As  far  as  the 
practice  of  nations  is  concerned,  we  have  a good  instance  in 
the  obstructions  at  Dunkirk,  which  were  stipulated  for  in  the 
Treaty  of  Utrecht  (see  Append,  ii.,  under  1713),  and  insisted 
upon  in  all  new  treaties,  until  the  French  were  released  from 
their  obligations  by  the  peace  of  Paris  in  1783.  And,  in  the 

war  of  1870  between  France  and  Germany,  the  Prussians 
20 


306 


OF  THE  RELATIONS  BETWEEN 


§ 18V 


blocked  up,  or  filled  with  torpedoes,  a large  part  of  the  har- 
bors of  northern  Germany. 


Section  II.  — Of  the  Rights  and  Liabilities  of  Neutral  Trade. 


rights  of 

neutral 

trade. 


§ 182. 

Having  considered  the  relations  between  belligerent  and 
Importance  iieuti’al  States.,  we  now  proceed  to  inquire  how  war 
tLehtng™^  affects  the  commerce  of  neutral  persons,  or  the  rights 
and  liabilities  of  neutral  trade.  This  is  a subject  of 
greater  practical  importance  than  any  other  in  inter- 
national law  so  far  as  it  applies  to  intercourse  by  sea ; for  if  the 
rule  restricting  the  freedom  of  neutral  trade  verges  to  the  ex- 
treme of  strictness,  the  evils  of  war  are  very  much  increased, 
and  its  non-intercourse  is  spread  over  a wider  field.  It  is  also 
a subject  in  which  the  jarring  views  of  belligerents  and  of 
neutrals  have  hitherto  prevented  fixed  principles  on  many 
points  from  being  reached,  so  that  neither  have  different  na- 
tions agreed  in  their  views,  nor  has  the  same  nation  at  differ- 
ent times  been  consistent,  nor  have  text-writers  advocated  the 
same  doctrines.  Yet  the  history  of  opinion  and  practice  will 
lead  us  to  the  cheering  conclusion  that  neutral  rights  on  the 
sea  have  been  by  degrees  gaining,  and  to  the  hope  that  here- 
after they  will  be  still  more  under  the  protection  of  interna- 
tional law  than  at  any  time  past. 


§ 183. 

The  nationality  of  individuals  in  war  depends  not  on  their 
origin  or  their  naturalization,  but  upon  their  domicil, 
neutrals  He  is  a neutral  who  is  domiciled  of  free  choice  in  a 
is  neutral  neutral  country,  and  he  an  enemy  who  is  domiciled 

property,  , , j.  tt 

m an  enemy  s country.  Hence  — 

1.  As  domicil  can  be  easily  shaken  off,  a person  in  the 
prospect  of  war,  or  on  its  breaking  out,  may  withdraw  from 
the  enemy’s  to  another  country  with  the  intention  of  staying 


§ 183. 


BELLIGERENTS  AND  NEUTRALS. 


307 


tliei’e,  and  thus  change  his  domicil.  IE  he  should  return  to  his 
native  country,  fewer  circumstances  would  be  required  to  make 
out  intention  than  if  he  betook  himself  to  a foreign  territory. 
If  against  his  will  and  by  violence  at  the  breaking  out  of  war 
he  was  detained  in  the  belligerent  country,  bis  longer  stay 
would  be  regarded  as  the  forced  residence  of  a stranger,  and 
probably  all  disadvantageous  legal  consequences  of  his  domicil 
there  Avould  cease. 

2.  If  a county  is  conquered  during  a Avar,  its  national  char- 
acter changes,  although  it  may  be  restored  again  at  peace,  and 
so  the  nationality  and  liabilities  of  its  inhabitants  engaged  in 
business  change. 

3.  But  a person  having  a house  of  commerce  in  the  enemy’s 
countiy,  although  actually  resident  in  a neutral  country,  is 
treated  as  an  enemy  so  far  forth  as  that  part  of  his  business  is 
concerned,  or  is  domiciled  there  quo  ad  hoc.  On  the  other 
hand,  a person  having  a house  of  commerce  in  a neutral  coun- 
try and  domiciled  among  the  enemy,  is  not  held  to  be  a neu- 
tral. This  is  the  doctrine  of  the  English  courts,  adopted  by 
the  American.  “ It  is  impossible,”  says  Dr.  Wheaton  (“  Ele- 
ments,” iv.  1,  § 20),  “in  this  not  to  see  strong  marks  of  the 
partiality  toAvards  the  interests  of  captors,  AAdiich  is  perhaps 
inseparable  from  a prize  code,  framed  by  judicial  legislation 
in  a belligerent  country,  and  adopted  to  encourage  its  naval 
exertions.”  ^ 

In  general,  property  follows  the  character  of  its  OAAUier.  Thus 
neutral  ships  are  ships  owned  by  neutrals,  that  is  by  persons 
domiciled  in  a neutral  country,  and  the  same  is  true  of  goods. 
Hence  in  partnerships,  if  one  OAvner  is  a neutral  and  in  a neu- 
tral country  and  the  other  an  enemy,  only  the  property  of  the 
latter  is  liable  to  capture.  But  here  Ave  need  to  notice,  — 

1.  That  ships  cannot  easily  transfer  their  nationality  on  a 
voyage,  the  act  of  so  doing  being  presumptiA^e  evidence  of  a 
fraudulent  intention  to  screen  them  from  the  liabilities  of  their 
former  nationality. 

2.  That  when  a ship  sails  under  a hostile  flag,  she  has,  by 
whomsoever  oAvned,  a hostile  character. 

1 Compare  Dana’s  note  161  on  Wlieaton  for  a criticism  qualifying  this  remark. 


308 


OF  THE  EELATIONS  BETWEEN 


§ 183. 


3.  If  a neutral’s  ship  sails  under  an  enemy’s  license  to  trade, 
she  becomes  hostile ; for  why  should  she  have  the  advantages 
of  a close  connection  with  the  enemy  without  the  disadvan- 
tages ? 

4.  If  a neutral  is  the  owner  of  soil  in  a hostile  country,  the 
product  of  such  soil,  exported  by  him  and  captured,  is  consid- 
ered hostile.  This  is  on  the  principle  that  the  owner  of  soil 
identifies  himself,  so  far  forth,  with  the  interests  of  the  coun- 
try where  his  estate  lies.^ 

5.  In  a revolted  province  waging  regular  war  there  are  no 
loyal  persons  whose  property  is  distinguished  from  that  of  the 
other  inhabitants,  but  all  are  jurally  enemies,  unless  detained 
by  force  within  the  borders  when  desirous  to  escape.  The 
Supreme  Court  of  the  United  States  (Black’s  Reports,  ii., 
635-639)  decided  that  “ all  persons  residing  within  this  [i.  e., 
the  Confederate]  territory,  Avhose  property  may  be  used  to  in- 
crease the  revenues  of  the  hostile  power,  are  in  this  contest 
liable  to  be  treated  as  enemies,  though  not  foreigners.”  Such 
a decision  presupposes  hostile  territory  and  not  hostile  persons 
only ; and  the  territory  could  be  hostile,  only  because  the  ex- 
isting supreme  power  Avas  hostile  to  the  United  States. 

§ 184. 

When  a Avar  arises  one  of  three  things  must  take  place. 
General  Either  the  neutral  trade  may  go  on  as  before,  and 
toHawuty'^^  belligerents  have  no  right  Avhatever  to  injure  or  limit 
to  capture.  manner  ; or  the  belligerents  may,  each  of 

them,  interdict  any  and  all  trade  of  neutrals  Avith  the  other; 
or  there  are  certain  restrictions  Avhicli  may  be  imposed  on  neu- 
tral trade  Avith  justice,  and  certain  other  restrictions,  Avhich 
must  be  pronounced  unjust. 

1.  FeAV  have  contended  that  the  trade  of  neutrals  ought  to 
be  entirely  unfettered,  for  a part  of  that  trade  may  consist  in 
supplying  one  foe  Avith  the  means  of  injuring  the  other,  and 
the  siege  or  blockade  of  strong  places  Avould  be  nugatory,  if 
neutrals  could  not  be  prevented  from  passing  the  lines  with 

1 Compare  Wheaton,  Elementt,  iv.,  1,  §§  17-22;  Kent,  i.,  74,  Lect.  iv. 


§ 184. 


BELLIGERENTS  AND  NEUTRALS. 


309 


provisions.  Will  it  be  said  that  such  trade  is  impartial,  — 
that  it  favors  one  party  in  a war  no  more  than  the  other  ? It 
would  be  bettei-  to  say  that  it  is  partial  now  to  one  side  and 
now  to  the  other,  and  that  a series  of  assistances,  rendered  to 
parties  in  a struggle,  although  they  might  balance  one  an- 
other, — which  would  not  generally  be  true  in  fact,  — are  un- 
just, because  they  only  put  off  or  render  fruitless  the  effort  to 
obtain  redress,  with  which  the  war  began. 

2.  On  the  other  hand  it  will  not  be  claimed  that  a belliger- 
ent may  justly  forbid  neutrals  to  carry  on  every  kind  of  trade 
with  his  enemy.  I may  have  a right  to  distress  my  foe  in 
order  to  bring  him  to  a right  mind  and  procure  redress,  but 
what  right  have  I to  distress  my  friend,  except  so  far  as  he 
takes  the  part  of  my  foe,  and  thus  ceases  to  be  my  friend. 
Will  it  be  said  that  all  trade  with  one  foe  is  a damage  to  the 
other,  and  may  therefore  be  broken  up?  No  doubt  it  is  indi- 
rectly an  injury,  but  indirect  results  of  lawful  business  no 
more  justify  interference,  than  the  advance  of  one  nation  in 
wealth  and  industry  justifies  others  in  endeavoring  to  cripple 
its  resources.  The  neutral  might  with  as  much  yrtstfce  declare 
war,  because  the  belligerent  injured  him  by  a fair  operation 
of  war,  — by  blockading  the  port  of  his  foe  for  instance,  — as 
a party  to  a war  require  that  all  trade  should  bend  to  his  con- 
venience. And  besides  this  the  same  humanity  which  allows 
internal  trade  to  remain  undisturbed  during  an  invasion  on  the 
land,  ought  to  leave  the  neutral’s  commerce  in  some  degree  free 
to  take  its  wonted  course. 

3.  It  is  therefore  allowed  on  all  hands  that  some  restrictions 
may  be  imposed  on  neutral  trade,  not  such  as  a belligerent 
may  select,  but  definite  and  of  general  application.  The  law 
of  nations  on  this  subject  has  been  viewed  as  a kind  of  com- 
promise between  neutral  and  belligerent  right.  Neutrals  may 
legitimately  carry  on  all  sorts  of  trade,  and  belligerents  may 
interrupt  all.  Hence  nations  have  waived  their  rights  and 
come  to  a certain  middle  ground,  where  some  rights  of  both 
parties  are  saved  and  some  thrown  overboard.  But  this  view 
seems  to  be  objectionable,  as  making  the  actual  neutral  rights 


310 


OF  THE  RELATIONS  BETWEEN 


§ 184. 


to  arise  out  of  a state  of  things  which  is  a jural  impossibility. 
It  cannot  at  the  same  time  be  true  that  neutrals  should  enjoy 
a particular  trade,  and  belligerents  obstruct  that  trade.  There 
must  be  kmds  of  trade  Avhich  neutrals  have  a right  to  engage 
in,  and  herein  belligerents  are  obliged  to  leave  them  undis- 
turbed. Otherwise  the  law  of  nations  has  no  jural  founda- 
tion. 

When  we  ask,  however,  what  degree  of  restriction  may  be 
justly  applied  to  neutral  trade,  we  feel  a Avant  of  a definite 
principle  to  guide  us  in  the  answer : Ave  arc  forced  to  say 
someAvhat  v^aguely  that  the  restrictions  must  be  such  as  to 
keep  neutral  trade  from  directly  assisting  either  party  in  the 
armed  contest,  and  the  smallest  jjossible,  consistent  Avith  the 
ends  Avhich  a just  Avar  involves. 

If  these  vieAvs  are  correct,  it  is  Avrong  for  the  neutral  and 
for  his  subjects  to  engage  in  certain  kinds  of  trade  during  a 
AA'ar,  as  truly  as  it  is  right  for  him  to  engage  in  certain  others. 
If,  for  instance,  he  holds  the  same  doctrine  Ardth  the  belliger- 
ent in  regard  to  the  contraband  of  Avar,  ho  Avould  Adolato  the 
rights  of  one  friend  by  supplying  another  Avith  such  articles. 
And  yet  Ave  by  no  means  affirm  that  laAV  as  now  understood 
requires  the  neutral  nation  to  prevent  such  trade  on  the  part 
of  individuals  by  vigilance  and  penalt}^  All  that  can  be 
required  of  him  is,  especially  Avhen  his  opinions  on  the  justice 
of  the  Avar  may  vary  greatly  from  those  of  his  belligerent 
friend,  that  he  should  be  iiassiAm,  Avhile  one  friend  tries  to  ob- 
tain Avhat  he  calls  redress  from  another.  The  rules  of  Avar  are 
to  be  put  in  force  by  the  parties  immediately  concerned ; he  is 
not  under  obligati^ju  to  add  to  his  trouble  and  expense  by  a 
neAv  commercial  police. 

The  restrictions  on  neutral  trade  knoAAm  to  international 
hiAV  have  related  for  the  most  part  — 

1.  To  the  conveyance  of  hostile  goods  in  neutral  ships,  and 
of  neutral  goods  in  hostile  ships,  or  to  the  relation  betAveen 
goods  and  vessels  haAung  different  nationalities  ; 

2.  To  the  conveyance  of  certain  kinds  of  articles,  having  a 
special  relation  to  Avar  ; 


§ 185. 


BELLIGEEENTS  AND  NEUTRALS. 


311 


3.  To  conveyance  to  certain  places  specially  affected  by  the 
operations  of  AA^ar  ; and  sometimes  — 

4.  To  a trade  closed  before  a Avar,  but  open  during  its  con- 
tinuance. 

And  in  order  to  carry  those  restrictions  into  effect,  a right 
of  examination  or  A'isit  must  be  exercised  upon  A^essel,  goods, 
or  both. 

§ 185. 

We  noAV  proceed  to  the  rules  of  international  laAV,  in  regard 
to  the  liability  to  captures  of  ships  and  goods  engaged 
in  ordinary  trade.  of  goods  and 

'J  ^ Yessel  as 

We  may  say,  in  general,  that  until  very  recent 
times  tAvo  rules  have  contended  Avith  one  another,  or  not  liable 

to  capture. 

— the  rule  that  tlte  nationality  of  froferty  on  the  sea 
determines  its  liability  to  capture^  or  neutral  property  is  safe 
on  the  sea  and  enemy’s  property  may  be  taken  Avherever 
found,  and  the  rule  that  the  nationality  of  the  vessel  deter- 
mines the  liability  to  capture^  or  that  the  flag  covers  the  cargo. 
By  the  first  rule  the  neutral  might  safely  put  his  goods  into 
any  A’essel  Avhich  offered  itself,  but  could  not  convey  the  goods 
of  his  friend,  being  one  of  the  belligerents,  Avithout  the  risk  of 
their  being  taken  by  the  other.  By  the  second,  Avhen  once  the 
nationality  of  the  ship  Avas  ascertained  to  be  neutral,  it  Avent 
on  its  Avay  Avith  its  goods  in  safety,  but  if  it  belonged  to  the 
enemy  it  exposed  neutral  goods  on  board,  as  Avell  as  other,  to 
be  taken.  This  latter  rule  consists  of  tAvo  parts,  that  free 
ships  make  free  goods,  and  that  enemy’s  ships  make  goods 
hostile,  but  the  tAA'o  are  not  necessarily,  although  part  of  the 
same  principle,  connected  in  practice;  the  former  may  be  re- 
ceived Avithout  the  latter. 

It  Avas  a thing  of  secondary  importance  both  for  the  neutral 
and  for  a belligerent,  being  a naA^al  poAver,  Iioav  the  rules 
should  shape  themselves  in  regard  to  the  neutral’s  goods  in 
hostile  bottoms.  And  his  OAvn  goods  on  board  his  OAvn  vessel 
Avere  freely  admitted  to  be  safe.  Hence  justice  and  a spirit 
of  concession  to  the  neutral  united  in  favor  of  the  rule  that  his 


312 


OF  THE  EELATIONS  BETWEEN 


§ 185 

goods  u'ere  safe  hy  whatever  vessel  conveyed ; although  not  safe 
from  sundry  inconveniences  growing  out  of  search  and  the 
capture  of  the  hostile  conveyance. 

On  the  other  hand,  it  was  of  great  importance  to  the  bellig- 
erent that  the  flag  should  not  cover  his  enemy’s  goods,  or 
that  free  ships  should  not  make  goods  free  ; for  thus,  much  of 
his  power  at  sea  to  plunder  or  annoy  his  enemy  would  be 
taken  away.  To  the  neutral,  the  opposite  rule,  that  free 
ships  should  make  goods  free,  w'as  of  great  importance ; for 
the  carrying  trade,  a part  of  which  war  would  in  other  ways 
throw  into  his  hands,  would  thus  be  vastly  augmented.  But 
the  belligerent’s  interest  on  the  whole  prevailed.  The  nations, 
especially  Great  Britain,  which  had  the  greatest  amount  of 
commerce,  liad  also  the  greatest  naval  force,  with  Avhich  they 
could  protect  themselves  and  plunder  their  foes,  and  therefore 
felt  small  need  in  war  of  hiding  their  goods  in  the  holds  of 
neutral  ships.  Thus,  for  a long  time  the  prevailing  rule  was, 
that  neutral  goods  are  safe  %mder  any  flag,  and  enemy' s goods 
unsafe  under  any  flag.  But  at  length  neutral  interests  and 
the  interests  of  peace  preponderated ; and  the  parties  to  the 
treaty  of  Paris  in  1856,  Great  Britain  among  the  rest,  adopted 
for  themselves  the  rule  which  will  be  valid  in  all  future  wars, 
and  is  likely  to  be  universal,  that  free  ships  are  to  make  goods 
free.  Likely  to  be  universal,  we  say,  unless  a broader  rule 
shall  exempt  all  private  property  on  the  sea  engaged  in  lawful 
trade  from  capture. 

§186. 

The  ship  of  a neutral  in  which  hostile  goods  are  found,  has 
been  sometimes,  particularly  by  French  and  Spanish 
S^^e.Sei's'^  ordinances,  treated  as  if  engaged  in  a guilty  busi- 
hosme'"°  ness,  and  visited  with  confiscation.  But  modern 
goods.  practice,  Avhilst  it  seized  the  enemy’s  goods,  has  been 
in  favor  of  paying  freight  to  such  neutral,  that  is,  not  fieight 
for  the  part  of  the  voyage  performed,  but  for  the  ivhole,  capture 
of  the  goods  being  regarded  as  equivalent  to  delivery.  But  a 
neutral  ship  engaged  in  the  enemy’s  coasting  trade  cannot 


§ 186. 


BELLIGERENTS  AND  NEUTRALS. 


813 


claim  freiglit  for  hostile  goods  on  board,  because  it  has  put 
itself  into  the  position  of  a hostile  vessel.^ 

On  the  other  hand,  when  a hostile  vessel  is  taken  with  the 
neutral’s  property  on  board,  the  captor  is  entitled  to 
freight,  if  the  goods  are  carried  to  their  port  of  des-  neutral 
tination.2  But  if  “ the  goods  are  not  carried  to  their  captured  eu- 
original  destination  Avithin  the  intention  of  the  con- 
tracting  parties,  no  freight  is  due.”  ® 

Hostile  ships,  with  Avhatever  goods  on  board,  have  been  uni- 
formly regarded  as  prizes  of  Avar.  But  from  the 

^ ^ Coast-fisher- 

operations  of  war,  one  class  of  vessels,  en^ao^ed  in  an  ies  of  foes 

^ ^ ° ° protected  in 

eminently  pacific  employment,  and  of  no  great  ac-  war  by  some 
count  in  regard  to  national  resources,  has  often  been 
exempted ; Ave  refer  to  vessels  engaged  in  coast-fisheries.  It 
appears  that  this  exemption  was  alloAved  centuries  ago.  Frois- 
sart is  cited  as  saying  in  his  Chronicle  that  “fishermen  on  the 
sea,  Avhatever  Avar  there  be  in  France  and  England,  do  no 
harm  to  one  another  : nay,  rather,  they  are  friends,  and  aid 
one  another  in  case  of  need.”  The  liberty  of  the  enemy's  fish- 
ermen in  Avar  has  been  protected  by  many  French  ordinances, 
and  the  English  observed  a reciprocal  indulgence ; but  in 
1798,  during  the  French  Revolution,  the  English  government 
ordered  its  cruisers  to  seize  French  and  Dutch  fishermen  and 
their  smacks.  Soon  after,  on  remonstrance  from  the  First  Con- 
sul of  France,  the  order  Avas  AAuthdraAvn,  as  far  as  the  coast- 
fisheries  in  the  strict  sense  Avere  concerned ; and  during  the 
Avars  of  the  empire,  this  peaceful  and  hardy  class  of  laborers 
enjoyed  exemption  from  capture.  In  the  instructions  given 
by  the  French  Minister  of  Marine  to  naval  officers  in  1854, 
at  the  outbreak  of  the  late  Av^ar  Avith  Russia,  Ave  find  the  same 
rule  folloAved.  “ You  must  put  no  hindrance,”  say  the  instruc- 
tions, “ in  the  Avay  of  coast-fishery  even  on  the  coasts  of  the 
enemy,  but  you  Avill  be  on  your  guard  that  this  favor,  dictated 

1 Comp.  'W’ildmaii,  ii.,  1.54. 

2 The  presumption  is  against  the  goods  belonging  in  this  case  to  the  neutral, 
and  he  must  prove  his  proiterty. 

3 Id.  ii,  162. 


314 


OF  THE  IlELATIONS  BETWEEN 


§ 186. 


by  an  interest  of  linmanity,  draws  with  it  no  abuse  prejudi- 
cial to  military  or  maritime  operations.  If  you  are  employed 
in  the  Avaters  of  the  White  Sea,  you  Avill  alloAV  to  continue 
Avithout  interruption  (repression  in  case  of  abuse  excepted) 
the  exchange  of  fresh  fish,  provisions,  utensils,  and  tackling, 
Avhich  is  carried  on  habitually  betAveen  the  peasants  of  the 
Russian  coasts  of  the  province  of  Archangel  and  the  fisher- 
men of  the  coast  of  Norwegian  Finmark.”  Such  has  been 
the  practice  of  some  of  the  principal  Christian  nations  in  pro- 
tecting the  coast-fisheries  of  enemies,  but  as  yet  this  usage 
cannot  be  called  a part  of  international  laAV.^ 


§ 187. 

Having  seen  Avhat  is  the  actual  state  of  international  laAV 
Justice  of  ill  regard  to  neutral  trade,  Ave  may  now  inquire 
spmhig^  ™ Avhether  any  definite  rule  of  justice  applicable  to 
"rad^Jcon-  ^‘^imii  fi’acle  can  be  laid  doAvn. 

sidcred.  Admitting  for  the  present  that  capture  of  private 

pi-operty  on  the  sea  is  justifiable,  Ave  ask  Avhich  of  the  tAVO 
principles  is  conformable  to  justice,  that  Avhich  makes  capture 
depend  on  the  nationality  of  the  conveyance,  or  that  Avhich 
makes  it  depencl  on  the  nationality  of  the  property,  Avhether 
ship  or  goods  ? Here  AA^e  find  — 

1.  That  the  conveyance  or  Amssel  has  been  claimed  to  be 
territory,  from  AAdiich  it  Avould  folloAV  that,  by  interfering  Avith 
neutral  Amssels,  the  soA'ereignty  of  neutral  nations  Avas  in- 
A'aded.  But  tlij*  claim  is  false,  as  has  already  been  shown 
(§  58),  and  seems  to  liaA-e  been  devised  just  to  cover  this 
particular  case,  just  to  screen  neutral  ships.  It  is  not  a claim 
admitted  in  the  laAv  of  nations  : ships  are  liable  to  search  on 
the  ocean,  and  are  under  the  jurisdiction  of  the  nation  in 
AAdiose  ports  they  lie,  to  neither  of  AA'hich  liabilities  territory  is 
exposed.  Hoav  can  the  sea  itself  be  the  territory  of  no  one. 


1 Comp.  Ortolan,  ii.,  44,  and  Cairo  ii.,  23.5,  236.  According  to  tlii.s  author,  the 
United  States,  in  the  war  with  ilexico,  allowed  the  enemy’s  fishermen  to  continue 
iheir'indnstry  unmolested.  He  also  states  that  Great  Britain  in  the  Crimean  war 
did  not  show  the  .same  indulgence  towards  fishermen  Avith  the  French. 


§ 187. 


BELLIGEEENTS  AND  NEUTRALS. 


315 


and  a vehicle  moving  over  it  have  the  properties  of  terra 
firma  ? A deserted  ship  is  not  claimed  to  be  territory.  A 
ship  with  a crew  on  board  is  nnder  the  protection  and  juris- 
diction of  its  country,  where  no  other  jurisdiction  interferes  ; 
that  is,  may  have  certain  properties  of  territory,  but  not  all 
properties.  On  the  other  hand,  if  ships  were  territory,  it  is 
clear  that  all  the  operations  of  war  which  affect  nential  ves- 
sels must  be  given  up,  blockade  and  the  prevention  of  con- 
traband trade,  as  much  as  any  other. 

2.  It  seems  to  be  in  accordance  Avith  justice,  that  the  na- 
tionality of  the  property  should  determine  the  rules  of  cap- 
ture. The  only  ground  for  taking  certain  things  aAvay  from 
private  persons  is,  that  tliey  belong  to  the  enemy,  or  that  they 
aid  the  enemy’s  operations  in  war.  If  they  are  taken  because 
they  belong  to  the  enemy,  vessels  and  goods  ought  to  share 
the  same  fate  ; they  are  equally  private  property,  and  differ  in 
no  essential  respect.  If  they  are  exempt  from  capture  be- 
cause they  belong  to  neutrals,  ships  and  goods  ,on  board  any 
ship  ought  to  be  exempt.  The  rule  thus  is  just,  clear,  and 
logical. 

3.  The  neutral  has  certainly  a right  to  take  his  friend’s 
goods  on  board  his  ship,  and  an  equal  right  to  put  his  own  on 
board  his  friend’s  ship  ; nor  Avill  the  fact  that  this  friend  has 
an  enemy  alter  the  case.  Here  the  Avar-right  of  this  enemy 
may  subject  him  to  great  inconvenience,  but  neither  his  prop- 
erty nor  his  wages,  in  the  shape  of  freight,  ought  to  be  taken 
from  him.  He  is  not  guilty  : why  should  he  suffer  other  than 
those  incidental  evils  which  Avar  brings  with  it,  and  a part  of 
Avhich  are  inevitable  ? 

4.  The  establishment  of  the  rule  that  free  ships  make  goods 
free,  is  a gain  for  humanity  and  a Avaiver  of  justice.  Hence 
AA^e  hail  it  as  inaugurating  an  era  more  favorable  to  peace. 
All  this  on  the  admission  that  private  property  may  rightfully 
be  taken  on  the  ocean : if  it  cannot  be,  or  it  is  expedient  that 
it  should  not  be,  the  same  rule  is  a movement  in  the  right  di- 
rection.i 

^ Mr.  Reddie  (in  his  Researches  in  Maritime  International  Law,  i.,  p.  468,  cited  by 


316 


or  THE  RELATIONS  BETWEEN 


§ 188. 


§ 188. 

In  the  course  of  tlie  centuries  during  which  international 
^ law  has  been  growing  up,  rules  have  been  fluctuating 

practice  in  as  it  I’cspects  the  liabilities  of  neutral  trade,  and 
ncutrai  couveiitional  law  has  often  run  counter  to  prevailing 
rules.  We  propose  here  to  give  some  brief  historical 
illustrations  of  the  former  laAV  and  practice. 

First,  the  leading  results  of  a historical  examination  seem 
to  be  sometbiiig  like  the  following  : — 

1.  That  of  old  in  mediaeval  Europe  there  probably  was  a 
feeling  that  neutral  trade  might  be  made  unlawful  by  either 
belligerent  at  any  time,  and  that  the  permission  of  such  trade 
was  looked  upon  as  a concession.  This  explains  the  custom 
of  confiscating  the  neutral  ship  with  hostile  goods  on  board, 
which  was  more  or  less  prevalent. 

2.  That  from  the  time  when  commerce  by  sea  began  to  be 
a great  interest,  neutrals  could  carry  hostile  goods  on  their 
ships  with  the  liability  of  only  such  goods  to  capture,  and 
generally  without  risk  to  the  vessel,  save  of  detention,  search, 
and  change  of  course  ; and  could  put  their  own  goods  on  hos- 
tile ships  without  danger  of  confiscation. 

3.  That  treaties  and  ordinances  during  the  seventeenth  and 
eighteenth  centuries  often  modified  Avhat  may  be  called  the 
prevailing  usage,  and  differed  so  much  from  one  another,  as 
to  show  that  no  pi'inciple  ran  through  them.  J\Iany  of  the 
treaties  gave  large  freedom  to  neutral  carriers,  and  some  ordi- 
nances, especially  in  France  and  Spain,  established  a very 

Ortolan,  for  I have  not  access  to  the  work),  remarks  that  it  is  doubtful  whether 
the  neutral  gains  anything  by  tlie  rule,  “ free  ships,  free  goods.”  For  the  carry- 
ing trade  of  hostile  property  must  come  to  an  end,  as  soon  as  peace  is  made,  and 
the  neutral’s  capital  must  then  be  turned  into  another  channel.  But  if  the  bel- 
ligerent’s property  be  liable  to  seizure,  the  neutral  will  own  more  of  the  goods  as 
well  as  of  the  ships,  and  his  capital  thus  invested  will  stimulate  all  branches  of 
home  industr}^  and  probably  be  longer  able  to  retain  the  channel  which  was 
opened  to  it  by  the  war.  There  is  something  in  this,  but  most  wars  are  too  short 
to  keep  the  powers  at  war  from  returning  to  their  old  usages  of  trade  at  the  peace. 
Besides,  tlie  annoyance  of  the  neutral  is  a very  great  evil,  and  his  loss  may  be 
great. 


§189. 


BELLIGEKENTS  AND  NEUTRALS. 


317 


harsh  rule  towards  them.  In  general,  where  by  treaty  free 
ships  made  goods  free,  this  was  coupled  Avith  the  rule,  that 
hostile  ships  made  goods  hostile,  or  the  nationality  of  the  ves- 
sel determined  the  character  of  the  transaction. 

4.  That  from  the  last  quarter  of  the  eighteenth  century 
neutral  nations  endeavored  to  force  on  the  Avorld  the  rule, 
“ free  ships,  free  goods,”  which  Avas  resisted,  and  prevented 
from  entering  into  the  laAv  of  nations  by  Great  Britain,  the 
leading  maritime  poAver. 

5.  That  since  the  peace  of  1815,  in  Europe,  the  importance 
of  pacific  relations  and  the  poAver  of  capital  have  brought 
about  a change  of  vieAvs  in  regard  to  international  policy, 
until  the  rule  above  mentioned  has  prevailed,  and  there  are 
not  Avanting  indications  of  a still  larger  liberty  of  maritime 
commerce. 

§ 189. 

One  of  the  earliest  provisions  of  medieeA^al  Europe  within 
our  knoAvledge,  is  to  be  found  in  a treaty  betAveen  Historical 
Arles  and  Pisa,  of  the  year  1221.  It  is  there  pro-  ‘>'“strations. 
vided,  that  in  case  any  goods  of  Genoese  or  other  public  ene- 
mies of  Pisa  are  found  in  a ship  Avith  men  of  Arles,  the  men 
of  Arles  shall  not  make  them  their  OAvn,  or  defend  them  on 
i their  own  account ; and  that  during  the  continuance  of  the 
war  between  Pisa  and  Genoa,  it  may  be  laAvful  for  the  Pisans 
to  treat  men  of  Arles,  if  found  on  Genoese  vessels,  and  their 
! goods,  as  if  Genoese,  and  to  retain  such  goods,  when  taken, 
i Avithout  restoring  them,  or  causing  them  to  be  restored.^ 

j This,  however,  may  have  begn  a temporary  and  exceptional 
j convention  between  the  tAvo  cities.  But  a little  later,  consoiato 
{ at  the  end  of  the  thirteenth  or  beginning  of  the  four- 

1 Pardessii.«,  Collection  des  Lois  Mar.,  ii.,  303,  refers  to  this  treaty,  which  is  to 
be  found  in  Muratoi  i’s  Antiq.  Ital.,  iv..  Col.  398,  as  illustrating  the  usage  that  the 
merchandise  of  a friend,  although  put  on  board  an  enemy’s  vessel,  ought  to  be 
respected.  But  it  shows  just  the  contrary.  The  te.xt  of  the  latter  part  is  “ si 
forte  aliqnis  Arelatensis  cum  Januensi,  donee  guerra  inter  Pisanos  et  Januenses 
fuerit,  a Pisanis  inventus  fuerit,  in  corum  navibus,  eundo  vel  redeundo,  liceat 
Pisanis  ....  Arelateusibus  [that  is,  Arelatenses]  et  res  eorum  tamqiiam  Jan- 
uensium  offendere  et  capere,  et  capta  retinere,  et  non  reddere  nec  reddi  facere.” 


318 


OF  THE  RELATIONS  BETWEEN 


§ 189. 


teentli  century,  we  meet  with  a code  of  wide  influence,  the 
Consolato  del  mare  (comp.  App.  i.),  which  is  remarkable  as 
being  the  only  ancient  sea-code  that  speaks  of  neutral  rights 
in  Avar.  In  chapter  231  of  this  code  (Pardessus,  ii.,  303-307) 
it  is  provided  that  if  a ship  that  is  captured  belongs  to  friends, 
and  the  merchandise  on  board  to  enemies,  the  commander  of 
the  cruiser  may  force  the  master  of  the  captured  vessel  to 
bring  him  the  hostile  goods,  and  even  to  keep  them  in  his 
OAvn  vessel,  until  it  is  brought  into  a place  of  safety ; but  it 
is  to  be  understood  that  the  captured  ship  be  carried  in  toAV 
to  a jAlace  Avhere  there  shall  be  no  fear  of  enemies,  — the 
commander  of  the  cruiser  paying,  hoAA^ever,  all  the  freight  due 
for  cai'rying  the  cargo  to  the  place  of  unloading,  etc. 

Another  provision  of  the  same  chapter  is  to  the  effect  that, 
if  the  ship  taken  be  hostile  Avith  a cargo  belonging  to  friends 
on  board,  the  merchants  in  the  ship,  and  to  whom  the  cargo 
in  whole  or  in  part  pertains,  ought  to  arrange  Avith  the  cap- 
tain of  the  captor  to  ransom  the  prize,  and  that  he  ought  to 
offer  it  to  them  at  a reasonable  price.  But  if  the  merchants 
Avill  not  make  a bargain,  he  is  to  have  the  right  to  send  it  into 
the  port  Avhere  his  vessel  Avas  equipped,  and  the  merchants  are 
obliged  to  pay  the  freight,  — just  as  if  he  convej^ed  the  goods 
to  the  port  of  destination,  — and  nothing  more  than  that 
freight.  The  code  then  goes  on  to  speak  of  injuries  suffered 
by  the  neutral  merchants  from  the  arrogance  or  Auolence  of 
the  captor,  in  Avhich  case,  besides  being  relieved  from  paying 
freight,  they  shall  receive  compensation.^ 

According  to  ]\Ir.  Manning,^all  the  treaties  before  the  sev- 
enteenth century  coincide  Avith  the  Consolato  del  mare^  in  re- 
gard to  the  liability  to  capture  of  enemies’  goods  on  board 
neutral  vessels.  In  1417,  an  engagement  betAveen  Henry  V. 
of  England  and  the  Duke  of  Burgundy  (Jean-sans-peur') 
contained  the  stipulation  tliat  goods  of  Flemings,  Avho  Avere 

1 Mr.  Manning  cites  tliis  as  c-liapter  273,  others  as  chapter  276.  It  is  ccxxxi. 
of  Pai'dcssiis,  and  was  translated  into  Englisli  in  1800  by  Chr.  Robinson.  In  the 
remainder  of  these  historical  illustrations,  and  in  those  pertaining  to  contraband, 
blockade,  and  search,  I have  been  greatly  assisted  by  Mr.  Manning’s  work  in  its 
first  edition. 


§189. 


BELLIGERENTS  AND  NEUTRALS. 


319 


the  duke’s  subjects^  on  board  ships  of  Genoa,  then  at  war  with 
England,  should  be  forfeited,  if  captured,  as  lawful  prize. 
“ This  is  the  only  instance  I have  met  with,”  says  Mr.  Man- 
ning, “ in  which  the  claim  that  neutral  goods  found  in  an 
enemy’s  ship  are  liable  to  capture  as  laAvful  prize  has  ever 
been  asserted  or  even  been  specified  by  this  country,  unless  in 
return  for  the  stipulation  that  enemies’  goods  are  free  in  a 
neutral  ship.”  (2d  ed.,  p.  314.) 

In  the  seA-enteenth  century,  and  onAvard,  until  toward  the 
end  of  the  eighteenth,  no  general  rule  runs  through  conven- 
tional law  : the  same  states  are  found  to  make  treaties  of 
directly  opposite  character  at  the  same  epoch.  The  Dutch, 
being  the  principal  carriers  of  Europe,  aimed  to  put  their 
trade  on  a footing  of  security ; and  the  first  treaty  betAveen 
Christian  powers  containing  the  principle,  “ free  ships,  free 
goods,”  AA"as  one  between  the  United  Provinces  and  Spain  in 
1650.  We  say  betAveen  Christian  poAA’ers,  because  a treaty  of 
France  Avifch  the  Porte,  in  1604,  contained  the  same  provision. 
In  1654,  England,  in  a treaty  Avith  Portugal,  for  the  first  time 
agreed  that  the  ship  should  cover  the  cargo ; Avhile,  in  a treaty 
of  the  same  year  Avith  the  Dutch  Republic,  the  old  rule  touch- 
ing the  liabilities  of  hostile  goods  continued.  Again,  in  the 
treaty  of  Breda,  made  by  tliese  same  two  poAA^ers,  in  1667, 
free  ships  make  free  goods  for  the  first  time  in  their  diplo- 
matic intercourse ; Avliile  a treaty  of  England  Avith  Denmark 
makes  no  change  in  the  old  usage.  By  the  treaty  of  the  Pyr- 
enees, in  1659,  reneAved  in  1668,  France  and  Spain  agreed 
that  the  cargo  should  folloAvthe  liabilities  of  the  shij),  Avhether 
neutral  or  hostile,  of  Avhieh  rule  the  Dutch  secured  the  benefit 
in  their  intercourse  Avith  these  two  states  in  1661.  Many 
treaties  of  the  close  of  the  seventeenth  century  enlarged  the 
privileges  of  neutrals,  as  that  of  NymAvegen  in  1678,  and  of 
Ryswick  in  1697,  as  far  as  France  and  the  Dutch  Avere  con- 
cerned. In  the  commei'cial  treaties  connected  Avith  the  peace 
of  Utrecht  in  1713,*  the  analogy  of  the  peace  of  the  Pyrenees 
was  folloAved,  in  making  all  goods  in  neutral  bottoms  free,  and 
1 Set}  D.umout,  viii,,  1.,  p.  348,  Ai  ts,  xvii , xviii. 


320 


OF  THE  EELATIONS  BETWEEN 


§ 189. 


in  hostile  liable  to  capture.  A similar  stipulation  appears 
afterwards  in  a treaty  of  1762,  between  Russia  and  Sweden, 
and  in  that  of  France  with  the  United  States,  when  she  ac- 
knowledged tlieir  independence,  in  1778.  Thus,  while  earlier 
usage  and  many  treaties  protected  neutral  propert}",  wherever 
found,  but  not  enemies’  property,  many  important  treaties  of 
the  century  before  1780,  gave  freedom  to  the  neutral  ship  and 
to  whatever  it  contained,  but  not  to  neutral  goods  on  an  en- 
emy’s vessel. 

The  law  of  France,  meanwhile,  followed  by  that  of  Spain, 
Avas  severe  toAvards  neutrals  Avith  Avhom  no  treaty  existed. 
The  edict  of  Henry  III.,  given  out  in  1584,  formally  confis- 
cates neutral  goods  on  enemies’  A'^essels,  as  Avell  as  enemies’ 
on  neutral  A'essels.  The  maritime  ordinance  of  Louis  XIV., 
framed  in  1681,  Avent  farther  still.  It  contains  the  folloAving 
article : “ All  ships  laden  Avith  the  goods  of  our  enemies,  and 
the  merchandise  of  our  subjects  or  allies  found  in  an  enemy’s 
vessel,  shall  be  laAvful  prize.”  By  allies  here,  not  allies  in 
Avar,  but  neutrals  Avere  aimed  at,  as  it  appears  by  an  arret 
made  a few  years  aftei’Avard.  Things  continued  thus  until,  in 
1744  under  Louis  XV.,  a regulation  freed  neutral  ships  from 
the  infection  of  the  hostile  cargo,  but  the  same  enactment  or- 
dained that  neutral  goods,  the  groAvth  or  fabric  of  enemies, 
should  be  confiscated.  Again,  in  1778,  under  Louis  XVI.,  a 
regulation  contained  an  implied  sanction  of  the  maxim  that 
the  neutral  flag  covers  the  cargo,  coupling  it,  however,  like 
the  treaty  of  the  Pyrenees  and  others,  Avith  the  opposite,  that 
the  hostile  flag  exposes  the  cargo  ; and  these  maxims  have 
governed  the  conduct  of  France  toAvards  neutrals  since  then 
until  recent  times,  Avith  the  exception  of  her  retaliatory  meas- 
ures under  Napoleon  toAvards  England,  the  effects  of  which 
fell  heavily  on  neutrals.  Spain,  in  1702  and  1718,  followed 
the  legislation  of  the  elder  Bourbon  line,  and  in  1779  adopted 
the  relaxation  proclaimed  in  France  the  year  before.^ 

The  armed  neutrality  set  on  foot  in  1780  Avas  a plan  to  es- 
cape from  the  severe  but  ancient  Avay  of  dealing  Avith  neutrals 
1 Compare  Ortolan,  ii.,  86  et  seq.,  esp.  93. 


§ 189. 


BELLIGEEENTS  AND  NEUTRALS. 


321 


Tvliicli  Great  Britain  enforced,  advancing  certain  milder 
principles  of  international  law.  These  were  that  neu- 
tral  vessels  had  a right  to  sail  in  freedom  from  harbor  ’“'“‘'■aiity. 
to  harbor  and  along  the  coasts  of  belligerents:  that  the  prop- 
erty of  enemies  not  contraband  of  war  on  neutral  sliips  shonld 
be  free ; that  a port  is  blockaded  only  Avhen  evident  danger 
attends  on  the  attempt  to  run  into  it ; that  by  these  principles 
the  detention  and  condemnation  of  neutral  ships  should  be  de- 
termined ; and  that,  when  such  vessels  had  been  unjustly  used, 
besides  reparation  for  loss,  satisfaction  shonld  be  made  to  the 
neutral  sovereign.  The  parties  to  this  league  engaged  to 
equip  a fleet  to  maintain  their  principle,  and  were  to  act  in 
concert.  These  parties  were,  besides  Russia,  which  announced 
the  system  to  the  powers  at  war,  and  invited  other  neutrals  to 
cooperation,  Denmark,  Sweden,  the  Dutch  provinces,  Prussia, 
Austria,  Portugal,  and  Naples.  Two  of  the  belligerents, 
France  and  Spain,  concurred,  but  the  other,  England,  replied 
that  she  stood  by  the  law  of  nations  and  her  treaties.  Eng- 
land had  reason  to  complain  of  this  league,  because  some  of 
the  parties,  then  at  peace  with  her,  — Sweden  and  Denmark, 
— were  at  the  time  held  by  treaty  with  her  to  just  the  con- 
trary principle ; Avhile  others  had  even  punished  neutral  ships 
for  what  they  noAV  claimed  to  be  a neutral  right.  The  first 
armed  neutrality  did  little  more  than  announce  a principle, 
for  no  collision  took  place  between  them  and  Great  Britain  ; 
but  it  formed  an  epoch,  because  in  no  previous  arrangement 
between  Christian  states  had  the  rule,  “free  ships,  free 
goods,”  been  separated  from  the  opposite,  “ unfree  or  hostile 
ships,  hostile  goods.”  In  the  peace  of  Versailles,  which  in 
1783  terminated  the  AA^ar  betAveen  England  and  France  grow- 
ing out  of  our  revolution,  the  two  powers  returned  to  the  stip- 
ulations of  the  peace  of  Utrecht  Avhich  have  been  mentioned 
above. 

In  the  opening  years  of  the  French  revolution  England  re- 
coA’ered  her  influence  over  the  poAvers  of  Europe,  and  several 
of  them  abandoned  or  suspended  the  rule  for  Avhich  in  great 
measure  the  armed  neutrality  was  formed.  And  the  national 
21 


322 


OF  THE  EELATIONS  BETWEEN 


§ 190. 


convention  of  France,  in  1793,  decreed  that  enemy's  goods 
on  board  neutral  vessels,  but  not  the  vessels  themselves, 
should  be  lawful  prize,  and  that  freight  should  be  paid  to 
the  captor. 

The  United  States,  in  treaties  with  foreign  powers,  have  gen- 
erally aimed  to  extend  the  rights  of  neutral  can  iers 


Treaties  of  • i i t 

the  United  as  fav  as  possible.  In  some  conventions,  however, 
that  Avith  Spain  in  1819,  Avith  Columbia 


States 


as  m that  AVitli  Spain  in  1819,  Avitu  uoiumoia  in 
1824,  AAuth  Central  America  in  1825,  a someAvhat  cumbrous 
rule  of  reciprocity  has  been  folloAved,  namely,  that  free  ships 
shall  make  goods  free,  only  so  far  as  those  poAvers  are  con- 
cerned Avhich  recognize  the  principle.  But  in  the  treaty  Avith 
England,  in  1794  (comp.  § 124),  it  is  agreed  that  the  prop- 
erty of  enemies  on  neutral  vessels  may  be  taken  from  them. 
And  in  one  made  Avith  France,  in  1800,  the  maxim  that  hostile 
ships  infect  the  cargo  goes  along,  as  Avas  then  not  unusual, 
Avith  the  freedom  of  neutral  vessels. 

Twenty  years  after  the  first  armed  neutrality  a second  Avas 
Second  foi’mcd,  to  Avliicli  Russia,  the  Scandinavian  poAA^ers, 
trMty  of  Prussia  AA'ere  parties ; and  Avhich  derived  the 

1800.  pretext  for  its  formation  from  differences  of  opinion 
concerning  convoy  (§  209),  as  Avell  as  from  alleged  violations 
of  neutral  rights  by  English  cruisers  in  the  case  of  a SAvedish 
vessel.  The  platform  of  this  alliance  embraced  much  the 
same  principles  as  that  of  1780,  together  Avith  new  claims  con- 
cerning convoy.  But  nothing  was  gained  by  it  saving  some 
trifling  concessions  from  Great  Britain,  Avhile  Russia,  Den- 
mark and  Sweden  ere  long:  o-ave  in  their  adherence  to  the 
English  views  of  neutral  liabilities.  (5  209  and  Append,  ii., 
under  1800.) 

§ 190. 

During  the  years  betAveen  1814  and  1854,  Avhich  were  dis- 
Ruicsof  the  turbed  by  no  important  European  Avar,  the  rules  of 
Avar  respecting  neutral  trade  Avere  of  no  immediate 
importance.  On  the  breaking  out  of  the  short  but 
important  Crimean  Avar,^  notice  Avas  given  by  Great  Britain 
^ At  this  time  England  claimed  to  seize  enemy’s  goods  on  neutral  ships,  whil« 


peace  of 
Paris  in 
1856. 


§ 190. 


BELLIGERENTS  AND  NEUTRALS. 


323 


and  France  that  for  the  present  the  commerce  of  neutrals  Avith 
Russia  Avould  not  he  subjected  to  the  strict  operation  of  the 
rights  of  AA^ar  as  commonly  uiulerstood.i  At  the  peace  of 
Paris  in  185G,  the  principles  foreshadowed  in  the  declaration 
of  the  belligerents,  Avhicli  appear  in  the  note  below,  Avere  em- 
bodied in  a declaration  to  Avhich  all  the  parties  to  the  treaty 
subscribed.  We  haA’e  often  spoken  of  these  declarations, 
AAdiich  form  an  epoch  in  the  history  of  international  law,  hut 
Ave  here  insert  them  in  full,  although  but  one  of  them  refers  to 
our  present  subject : — 

1.  PriA’ateering  is  and  remains  abolished.  (§  128.) 

2.  The  neutral  flag  coA'ers  enemy's  goods,  Avith  the  excep- 
tion of  contraband  of  Avar. 

3.  Neutral  goods,  Avith  the  exception  of  contraband  of  war, 
ai'e  not  liable  to  capture  under  an  enemy’s  flag. 

4.  Blockades,  in  order  to  be  binding,  must  be  effectiA^e ; 

Franco  seized  neutral  goods  on  enemies’  ships.  As  they  were  allies  in  this  war, 
neutrals,  between  the  two  rules,  would  have  fared  hardly,  but  for  the  con- 
cessions of  France  and  England,  mentioned  in  the  text.  — (T.  S.)  Manning,  249, 
cd.  2. 

^ The  concurrent  declarations  of  England  and  Ejance,  in  their  Engli.sh  dres.s, 
were  as  follows,  under  date  of  March  28-29,  18.54  : — 

“ Her  Majesty,  the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Ire- 
land, having  been  compelled  to  take  np  arms  in  support  of  an  allv,  is  desirous  of 
rendering  the  Avar  as  little  onerous  as  possible  to  the  poAvers  with  Avhom  she 
remains  at  peace. 

“ To  preserve  the  commerce  of  neutrals  from  all  unnecessary  obstruction.  Her 
Majesty  is  Avilling  for  the  present  to  waive  a part  of  the  belligerent  rights  apper- 
taining to  her  by  the  laAv  of  nations. 

“ It  is  impossible  for  Her  Majesty  to  forego  the  exercise  of  her  right  of  seiz- 
ing articles  contrahand  of  Avar,  and  of  preventing  neutrals  from  bearing  the  ene- 
my’s des|)atches,  and  she  must  maintain  the  right  of  a belligerent  to  prevent  neu- 
trals from  breaking  any  effective  blockade,  Avhich  maybe  established  Avith  an 
adequate  force  against  the  enemy’s  forts,  harbors,  or  coasts. 

“ But  Her  Majesty  Avill  Avaive  the  right  of  seizing  enemy’s  property,  laden  on 
board  a neutral  vessel,  nidess  it  be  contraband  of  Avar. 

“ It  is  not  Her  Majesty’s  intention  to  claim  the  confiscation  of  neutral  prop- 
erty, not  being  contraband  of  Avar,  found  on  hoard  enemy’s  ships,  and  Her  Maj- 
esty further  declares  that,  being  atjxious  to  lessen  as  much  as  po.ssiblc  the  evils 
of  Avar,  and  to  restrict  its  operations  to  the  regularly  organized  forces  of  the 
country,  it  is  not  her  present  intention  to  issue  letters  of  marque  for  the  com- 
missions of  privateers.” 


324 


or  THE  RELATIONS  BETWEEN 


§ 190. 


that  is  to  say,  maintained  by  a force  sufficient  really  to  prevent 
access  to  the  coast  of  an  enemy. 

Other  powers  were  to  be  invited  to  accede  to  these  articles, 
but  only  in  solidarity  and  not  separately.  The  third  and 
fourth  being  already  received  by  Great  Britain,  the  abandon- 
ment of  privateering  must  be  regarded  as  her  motive  for  waiv- 
ing her  old  and  fixed  doctrine  in  regard  to  the  liability  to 
capture  of  hostile  goods  on  board  a neutral  vessel.  The  minor 
powers  of  Europe,  whose  interests  lie  on  the  side  of  neutral 
privileges,  and  nearly  every  other  Christian  state  in  the  world, 
— in  Europe,  all  except  Spain;  on  this  side  of  the  Atlantic, 
Brazil  and  a number  of  the  Spanish  republics,  but  Mexico  and 
the  United  States  have  not  yet  given  up  privateering,  — have 
acceded  to  this  declaration.  The  negative  reply  of  the  United 
States  to  an  invitation  to  do  the  same,  with  its  reasons,  has 
been  already  given  in  § 128.  If  the  larger  exemption  of  all 
innocent  private  property  from  the  liabilities  of  Avar,  to  Avhich 
the  United  States  offers  to  be  a party,  should  become  incorpo- 
rated in  the  law  of  nations,  her  attitude  Avill  have  been  one  of 
great  advantage  to  the  Avorld.  If  not,  her  plea  of  self-defense 
in  keeping  up  the  system  of  privateering  Avill  probably  be  re- 
garded in  another  age  as  more  selfish  than  Avise.^ 

1 Tlie  true  policy  of  the  Uuited  States  is  to  come  uiuler  the  operation  of  the 
four  articles  as  soon  as  possible.  The  refusal  was  based  on  the  utility  of  priva- 
teers in  saving  the  expense  of  maintaining  a large  navy.  But  if  a w'ar  should 
break  out  between  the  United  States  and  any  of  the  nations  which  signed  the  four 
articles,  that  is  with  any,  excepting  one  or  two,  of  the  important  civilized  nations 
of  tlie  world,  we  could  have  no  benefit  from  the  four  articles,  and  privateers 
could  swarm  the  sea  in  pursuit  of  onr  merchant  vessels.  Nor  could  we,  if  we  were 
neutrals,  cariw  the  goods  of  cither  enemy  upon  our  vessels,  for  the  four  artieies 
do  not  ap])lv  exce)it  to  the  siguers  of  them.  In  war,  especiallv  with  a leading 
commercial  power,  that  would  happen  again  which  happened  in  the  late  rvar  of 
the  .secession,  when  715  vessels,  measuring  480, 8S2  tons,  were  transferred  to  Brit- 
ish capitalists.  Such  was  the  result  of  a ])altry  naval  force  upon  our  shipping 
interest.  On  the,  other  hand,  by  acceding  to  the  four  articles,  we  should  be  in  a 
better  po.'-ition  to  aid  in  carrying  through  the  principle  of  tlie  entire  exemption 
of  all  jirivate  propertv  from  capture,  whicli  should  be  engaged  in  innocent  com- 
merce And  that  jioint  once  reached,  what  should  we  want  of  pirivateers,  or  of 
a large  regular  navv  7 Our  position  in  relation  to  the  powers  of  Europe  would 
generally  be  neutral,  but  now  we  cut  ourselves  off  from  the  advautage.s  of  neu- 
trality, which  are  constant,  on  account  of  a possible  advantage  of  a very  ques 
tionable  character. 


§ 191. 


BELLIGERENTS  AND  NEUTRALS. 


325 


§ 191- 

Until  about  the  middle  of  the  eighteenth  century,  writers 
on  the  law  of  nations  for  the  most  imrt  held  tliat  . 
neutral  goods  were  safe  in  any  vessel,  and  hostile  publicists, 
liable  to  capture  in  any  vessel.  Some  of  the  earlier 
writers,  as  Grotius,  Zouch,  and  Loccenius,  go  beyond  this  rule 
in  severity  towards  the  neutral  ship,  and  seem  to  think  that  if 
the  owners  admitted  hostile  property  on  board,  the  vessel 
might  be  made  prize  of.  They  also  lay  it  down  that  goods  on 
hostile  vessels  belong  presumptively  to  the  enemy,  but  may 
be  saved  from  harm  on  proof  to  the  contrary.  Bynkershoek 
in  1737,  and  Vattel  in  1758,  state  the  doctrine  as  it  has  been  un- 
derstood by  those  who  maintain  that  enemy’s  goods  on  neutral 
vessels  but  not  neutral  on  enemy's  vessels  are  lawful  prize.  The 
latter  expresses  himself  thus : “ If  we  find  an  enemy’s  effects 
on  board  a neutral  ship,  we  seize  them  by  the  rights  of  war ; 
but  we  are  naturally  bound  to  pay  the  freight  to  the  master 
of  the  vessel,  who  is  not  to  suffer  by  such  seizure.  The  effects 
of  neutrals  found  in  an  enemy’s  ship  are  to  be  restored  to  the 
owner,  against  whom  there  is  no  right  of  confiscation  ; but 
without  any  allowance  for  detainer,  decay,  etc.  The  loss  sus- 
tained by  the  neutrals  on  this  occasion  is  an  accident,  to  which 
they  exposed  themselves  by  embarking  their  property  in  an 
enemy’s  ship  ; and  the  captor,  in  exercising  the  rights  of  war, 
is  not  responsible  for  the  accidents  'which  may  thence  result, 
any  more  than  if  his  cannon  kills  a neutral  passenger  who 
happens  unfortunately  to  be  on  board  an  enemy’s  vessel.” 
Mr.  Manning  cites  Moser  (1780)  and  Lampredi  (1788)  to  the 
same  effect.  English  authorities  are  unanimous  in  declaring 
these  to  be  rules  of  international  law.  Our  Supreme  Court, 
and  our  principal  writers  on  this  branch,  take  the  same  ground. 
Chancellor  Kent  says : “ The  two  distinct  propositions,  that 
enemy’s  goods  found  on  board  a neutral  ship  may  be  lawfully 
seized  as  prize  of  war,  and  that  the  goods  of  a neutral  found 
on  board  an  enemy’s  vessel  are  to  be  restored,  have  been 
explicitly  incorporated  into  the  jurisprudence  of  the  United 


326 


OF  THE  EELATIOxXS  BETWEEN 


§ 191. 


States,  and  declared  by  tlie  Supreme  Court  to  be  founded  on 
the  law  of  nations.  I should  apprehend  the  belligerent  right  to 
be  no  longer  an  open  question  ; and  that  the  anthority  and  usage 
on  which  that  right  rests  in  Europe,  and  the  long,  explicit,  and 
authoritative  admission  of  it  by  this  country,  have  concluded 
us  from  making  it  a subject  of  controversy  ; and  tliat  we  are 
bound  in  truth  and  justice  to  submit  to  its  regular  exercise,  in 
every  case,  and  with  every  belligerent  power  who  does  not 
freely  renounce  it.”  ^ Again,  Dr.  Wheaton  says  ; “Whatever 
may  be  the  true,  original,  abstract  principle  of  natural  law  on 
this  subject,  it  is  undeniable  that  the  constant  usage  and 
practice  of  belligerent  nations,  from  the  earliest  times,  have 
subjected  enemy’s  goods  in  neutral  vessels  to  capture  and  con- 
demnation, as  prize  of  war.  This  constant  and  universal  usage 
has  only  been  interrupted  by  treaty  stipulations,  forming  a tem- 
poraiy  conventional  law  between  the  parties  to  such  stipula- 
tions.” “ The  converse  rule,  which  subjects  to  confiscation  the 
goods  of  a friend  on  board  the  vessels  of  an  enemy,  is  mani- 
festly contrary  to  truth  and  justice.”  ^ 

The  opposite  doctrine,  in  regard  to  enemy’s  goods  on  neu- 
tral vessels,  was  first  maintained  by  a Prussian  commission  ap- 
pointed to  look  into  the  complaints  of  certain  merchants  who 
had  had  French  goods  taken  out  of  their  vessels  by  English 
cruisers  in  1744.  They  venture  to  affirm  that  such  conduct  is 
not  only  contrary  to  the  law  of  nations,  but  also  to  all  the 
treaties  which  were  ever  concluded  between  maritime  powers, 
— two  propositions  which  are  equally  untenable.  In  1759, 
Martin  Hlibner,  a professor  at  Copenhagen,  claimed  that  this 

1 I.,  129-131,  Lect.  vi. 

2 Elements,  iv.,  3,  §§  19,  21.  It  may  bs  added  that  the  United  State.s,  in  their 
diplomatic  intercourse  with  foreign  governments,  liave  long-  claimed  it  to  be  a 
neutral  right  that  free  ships  should  make  free  goods.  Mr.  Marev  in  1854,  in  a 
note  to  the  British  envoy  at  AVashington,  exiircsses  the  Prcsident’.s  satisfaction 
that  “ the  principle  tliat  free  ships  make  free  goods,  which  the  United  States 
have  so  long  and  so  strennonsly  contended  for  as  a neutral  right,  is  to  have  a 
qntilified  sanction  ” in  the  war  of  England  and  France  with  Russia.  Ho  means, 
probably,  no  more  tlian  tliat  this  is  a fair  and  just  claim  of  neutrals;  not  that  it 
is  an  admitted  one,  or  a part  of  actual  international  law.  And  such  we  believe 
to  have  been  the  ground  previously  taken. 


§ 191. 


BELLIGERENTS  AND  NEUTRALS. 


327 


principle  ought  to  be  admitted  into  international  larr  ; and 
chiefly  on  two  grounds,  — first,  that  neutral  ships  are  neutral 
territory,  and  again  that  commerce  is  free  to  neutrals  in  war  as 
well  as  in  peace  ; since  war  ought  not  to  injure  those  who  are 
not  parties  in  the  contest.  In  more  recent  times  several  writ- 
ers on  the  law  of  nations  have  taken  the  same  position.  Thus 
Kliiber  says,  “On  the  open  sea  every  ship  is  exterritorial  in 
reference  to  every  state  except  its  own  : a merchant  ship  is  to 
be  looked  on  as  a floating  colony.  Therefore  a belligerent 
power  on  the  open  sea  ought  to  be  permitted  neither  to  visit  a 
neutral  vessel,  nor  to  take  hostile  goods  out  of  it ; still  less  to 
confiscate  the  ship  on  account  of  the  goods  found  in  it.”  And 
again  : “ A belligerent  power  ought  to  be  allowed  as  little  to 
confiscate  neutral  goods  found  on  an  enemy’s  vessel,  as  if  they 
had  been  met  with  on  the  soil  of  tlie  enemy’s  territory.”  De 
IMartens  holds  to  the  freedom  of  neutral  ships.^  Ortolan, 
while  rejecting  this  ground,  turns  to  sounder  principles  of  nat- 
ural justice.  “If  the  goods,”  says  he,  “ put  on  board  a neu- 
tral vessel  have  not,  of  themselves,  a hostile  character,  that  the 
neutral  should  take  pay  for  his  ship  and  for  the  labor  of  his 
sailors  has  nothino;  in  it  irreconcilable  with  the  duties  of  neu- 
trality.  Wh}’,  then,  should  a belligerent  obstruct  such  trade 
by  seizing  the  cargo  ? Is  it  not  legitimately  in  the  hands  of 
friends,  who  have  made  and  have  had  the  right  to  make  a bar- 
gain to  carry  it  for  pay  to  a place  agreed  upon,  and  who, 
apart  from  the  freight,  have  an  interest  in  securing  its  pres- 
ervation, since  on  this  may  depend  the  success  or  failure  of 
the  commercial  enterprise  in  which  they  are  engaged  ? And 
in  hindering,  by  the  confiscation  of  goods  transported,  this 
commerce  of  freight  and  commission,  do  not  belligerents  abuse 
the  principle,  which  permits  them  to  capture  enemy’s  prop- 
erty on  the  sea,  by  pushing  this  principle  into  consequences 
which  unjustly  attack  tlie  independence  and  essential  rights 
of  friendly  nations?”  He  adds  that  the  practice  of  paying 
freight  for  the  goods  thus  taken  out  of  neutral  ships  contains 

1 Kliiber,  § 299,  p,  354,  iu  German  ed.  of  1851.  De  Martens,  §316,  vol.  ii.,  322, 
Paris  ed.  of  1858.  Ortolan,  ii.,  91,  ed.  4 ; or  Lib.  iii.,  chap.  v. 


328 


OF  THE  RELATIONS  BETWEEN 


191. 


a kind  of  confession  that  the  nentval  has  sustained  an  injiuy, 
whilst  yet  the  payment  of  freight  is  by  no  means  an  adequate 
compensation  for  all  their  losses. 

§192. 

Wliile  the  neutral  can  put  his  goods  on  the  merchant  vessel 
of  either  of  the  belligerents  in  safetyq  it  has  been 
property  in  made  a question  whether  he  can  make  use  of  their 
enemy's  tcs-  armed  vessels  for  that  purpose.  The  English  courts 
have  decided  against,  and  the  American  courts  in 
favor  of  the  neutral’s  using  such  a conveyance  for  his  goods. ^ 
On  the  one  hand,  it  may  be  said  that  in  this  act  an  intention 
is  shown  to  resist  the  right  of  search,  and  the  inconveniences  of 
cajDture,  and  of  transportation  to  a port  such  as  the  captor  may 
select.  On  the  other  hand,  the  neutral,  his  goods  being  safe 
already,  has  perhaps  no  great  motive  to  aid  in  resistance,  for 
the  complete  loss  of  his  goods  is  endangered  by  an  armed  en- 
gagement. If,  however,  the  neutral  can  be  shown  to  have  aided 
in  the  arming  of  the  vessel,  it  is  just  that  he  should  suffer. 

The  decision  of  this  case,  as  Chancellor  Kent  observes,^  is 
of  very  great  importance.  Yet  with  the  discontinuance  of  pri- 
vateering such  cases  would  cease,  for  few  ships  will  be  armed 
with  the  purpose  to  resist  public  ships  of  war. 

§ 193. 

Contrabannum^  in  medioBval  Latin,  is  merces  hanno  inter- 
contrabauj  dictcB.  (Du  Caiigc.)  Banuus,  01’  haunum,  repre- 
of  war.  seated  by  our  ban,  and  the  Italian  bando,  denoted 
originally  an  edict,  a proclamation,  then  an  interdict.  The 

1 Soe  the  Fanmj,  1 Dodson’s  Adm.  Rep.,  443,  for  the  English,  the  Nereide,  9 
Crniicli’s  Bcp.,  for  the  American  views.  In  thi.s  case  Story  followed  the  Englisli 
decl.-iious,  bitt  the  other  tliree  judges  di.ssented  and  afterwards  persevered  in  their 
o]iinion.  {Afalania,  3 Wheaton,  41.5.)  Pliilliinore  tliinks  that  Story  and  Scott 
together  settle  the  case  against  the  righ  s of  nentrals  to  ship  goods  on  board  of 
armed  vessels  of  a belligerent,  as  far  as  international  law  is  concerned,  though 
conceding  that  Story  does  not  represent  American  prize  law.  (Phill.  iii.,  550, 
551,  ed.  2.)  — T.  S. 

2 I.,  132,  Lect.  vi. 


§ 193. 


BELLIGERENTS  AND  NEUTRALS. 


329 


sovereign  of  the  country  made  goods  contraband  by  an  edict 
prohibiting  their  importation  or  their  exportation.  Such  pro- 
hibitions  are  found  in  Roman  law.  A law  of  Valentinian  and 
his  colleagues  (Cod.  iv.,  41,  1),  forbids  the  exportation  of 
wine,  oil,  and  fish-sauce  (liquamen)  to  barbarian  lands  ; and 
another  of  IMarcian  (ibid.,  2),  the  selling  of  any  arms  or  iron 
to  barbarians,  the  latter  on  pain  of  confiscation  of  goods  and 
death.  Several  Popes  tlu’eatened  with  the  ban  the  conveyance 
of  arms  to  infidels,  and  similar  prohibitions  are  found  in  some 
of  the  ancient  maritime  codes.  Contraband  of  war  perhaps 
denoted  at  first  that  of  which  a belligerent  publicly  prohib- 
ited the  exportation  into  his  enemy’s  countiy,  and  now  those 
kinds  of  goods  which  by  the  law  of  nations  a neutral  cannot 
send  into  either  of  the  countries  at  war  without  wrong  to  the 
other,  or  which  by  conventional  law  the  states  making  a treaty 
agree  to  put  under  this  rubric.^ 

If  there  was  a famine  in  one  of  the  countries  at  war,  and 
a friendly  power  should  send  provisions  thither,  either  at  the 
public  expense  or  for  a compensation,  the  act  would  be  a law- 
ful one.  But  if  the  neutral,  instead  of  wheat,  should  send 
powder  or  balls,  cannon  or  rifles,  this  would  be  a direct  encour- 
agement of  the  war,  and  so  a departure  from  the  neutral  po- 
sition. The  state  which  professed  to  be  a friend  to  both  has 
furnished  one  with  the  means  of  ficjhtino:  a^-ainst  the  other, 
and  a wrong  has  been  done.  Now  the  same  wrong  is  com- 
mitted when  a private  trader,  Avithout  the  privity  of  his  gov- 
ernment, furnishes  the  means  of  Avar  to  either  of  the  warring 
parties.  It  may  be  made  a question  AAdiether  such  conduct 
on  the  part  of  the  private  citizen  ought  not  to  be  prevented 
by  his  government,  even  as  enlistments  for  foreign  armies  on 
neutral  soil  are  made  penal.  But  it  is  claimed  to  be  difficult 
for  a government  to  watch  narroAvly  the  operations  of  trade, 
and  it  is  annoying  for  the  innocent  trader.  Moreover,  the 
neutral  ought  not  to  be  subjected  by  the  quarrels  of  others  to 

1 The  cxplanntion  of  contrabnimum  from  tlie  church  ban  laid  on  the  carrying 
of  arms,  etc  , to  the  enemies  of  Christianity  seems  to  be  less  Avorthy  of  accepta- 
tion than  that  given  in  the  text. 


330 


OF  THE  RELATIONS  BETWEEN 


§ 193. 


additional  care  and  expense.  Hence,  by  the  practice  of  nations, 
he  is  passive  in  regard  to  violations  of  the  rules  concerning 
contraband,  blockade,  and  the  like,  and  leaves  tlie  police  of 
the  sea  and  the  punishing  or  reprisal  power  in  the  hands  of 
those  Avho  are  most  interested,  the  limits  being  fixed  for  the 
punishment  by  common  nsage  or  law. 

It  is  to  be  observed  that  the  rules  concerning  contraband 
relate  to  neutrals  exporting  such  articles  to  a country  at  war. 
There  is  nothing  unlaAvful,  Avhen  merchant  vessels  of  either  of 
the  belligerents  supply  themselves  in  a neutral  mart  witli 
articles  having  the  quality  of  contraband.  Here,  again,  the 
neutral  is  passive,  and  leaves  the  law  of  nations  to  be  exe- 
cuted by  others,  who  Avould  make  all  the  property,  if  captured, 
prize  of  war.^ 

1 Comp.  § 173.  A form.'il  wny  of  .stilting  the  relations  of  ,a  neutral  country  to 
contraband  trade,  taken  by  some  tcxt-writcr.s,  is  found  in  the  jiroposition  that 
sucli  a transaction  cannot  occur  on  neutral  tenitorv,  that  is,  that  it  begins  when 
the  articles  called  contraband  are  brought  upon  the  high  sea,  or  within  the 
enemy’s  limits  on  the  land  All  admit  that  when  the  act  of  exportation  from  the 
neutral  territory  begins,  an  act  of  violation  of  neutrality  on  the  part  of  some  one 
commences.  The  question  may  still  ho  tisked  whether  the  government  of  the 
neutral  is  not  bound  to  inferferc,  when  it  has  evidence  that  its  subjects  are  thus 
aiding  a belligerent  against  a friend,  and  is  not  bound  also  to  acquaint  itself  with 
such  evil  intentions.  In  the  present  state  of  the  law  of  nations,  this  is  not  felt  to 
be  obligatory,  although  sitch  trade  is  immoral,  a'nd  tends  to  produce  lasting  na- 
tional animosities.  Ajuster  and  hnmaner  policy  would  make  all  innocent  trade 
with  the  enemy  free,  and  requite  a neutral  to  pass  stringent  and  effectual  laws 
against  contraband  trade.  Phillitnore  (iii.,  §§  237-241)  denies  that  such  articles 
can  even  be  lawfullv  sold  to  the  belligerent,  within  the  territory  of  the  neutral.  “ If 
it  be  the  true  character  of  a neutral,”  says  lie,  “to  abstain  from  every  act  which 
may  better  or  worsen  the  condition  of  a belligerent,  the  uidawfulness  of  anj'snch 
sale  is  a nece.ssarv  conclusion  from  these  y)rcmises.  For  what  does  it  matter 
where  the  neutral  supplies  one  belligerent  with  the  means  of  attacking  another  1 
How  does  the  question  of  locality,  according  to  the  jninciples  of  eternal  justice 
and  the  reason  of  the  thing,  affect  the  itdvantago  to  one  belligerent  or  the  injury 
to  the  ocher  accruing  from  this  act  of  the  alleged  neutral  1 ” He  goes  on  to  say, 
with  justice,  that  foreign  enlistments  stand  on  the  same  ground  with  the  s.de  of 
munitions  of  war.  If  they  are  prohibited  and  made  penal,  as  they  are  extensively, 
w'hv  should  not  these  be  so  also  ? And  be  regrets  that  Judge  Story  should  have 
said  (case  of  the  SaHlis>:ima  Trinidad.  7 AVheaton,  340),  “ There  is  nothing  in 
our  laws  or  in  the  law  of  nations  that  forbids  our  citizens  from  sending  armed 
vessels  as  well  as  munitions  of  war  to  foreign  ports  for  sale.  It  is  a commercial 
adventure  which  no  nation  is  bound  to  prohibit ; and  which  only  exposes  the  per- 


§ 194. 


BELLIGERENTS  AND  NEUTRALS. 


331 


§194. 

It  is  admitted  that  the  act  of  carrying  to  the  enemy  arti- 
cles directly  useful  in  Avar  is  a Avrong,  for  Avhich  the 
injured  party  may  punish  the  neutral  taken  in  the  arc*  contra- 
act.  When,  hoAvever,  Ave  ask  AAdiat  articles  ai’e  con- 
traband, the  ansAver  is  variously  given.  Great  maritime  poAA'- 
ers,  Avhen  engaged  in  Avar,  have  enlarged  the  list,  and  nations 
generally  neutral  have  contracted  it.  Treaties  defining  Avhat 
is  contraband  have  differed  greatly  in  their  specifications  ; the 
same  nation,  in  its  conventions  Avith  different  poAvers  at  the 
same  era,  has  sometimes  placed  an  article  in  the  category  of 
contraband,  and  sometimes  taken  it  out.  Writers  on  the  Iuav 
of  nations,  again,  are  far  from  uniformity  in  their  opinions. 
To  make  the  subject  more  clear,  it  is  necessary  to  enter  into 
a consideration  of  different  classes  of  articles. 

1.  Articles  by  general  consent  deemed  to  be  contraband 
are  such  as  appertain  immediately  to  the  uses  of  Avar. 

Such  are,  in  the  Avords  of  a treaty  of  the  year  1800,  nfitions; 
between  England  and  Russia,  cited  by  Mr.  Manning,  “can- 
nons, mortars,  fire-arms,  pistols,  bombs,  grenades,  bullets, 
balls,  muskets,  flints,  matches,  powder,  saltpetre,  suljDhui-,  cui- 
rasses, pikes,  sAvords,  belts,  cartouch-boxes,  saddles,  and  bri- 
dles beyond  the  quantity  necessary  for  the  use  of  the  ship.” 
In  the  instructions  of  the  French  government  to  the  officers  of 
the  navy  in  the  Crimean  Avar,  given  in  March,  1854,  the  arti- 
cles enumerated  are  “ bouches  et  armes  a feu,  armes  blanches, 
projectiles,  poudre,  snlpetre,  soufre,  objets  d’equipment,  de 
campement  et  de  harnachement  militaires,  et  tons  instru- 
ments quelconques  fabriques  a I'usage  de  la  guerre.”  The 

sons  engaged  in  it  to  tlic  penalty  of  confiseation.”  I too  regret  that  Judge  Story 
slionld  liave  had  to  say  this,  if  it  be  true.  The  same  fact  prevails  everywhere 
as  to  munitions  of  war.  But  as  to  armed  vessels  of  war,  and  even  vessels  made 
ready  for  an  armament,  tire  they  not  too  decisively  tlie  begitining  o£  a ho.stile 
expedition  to  be  allowed  by  any  nations  that  prohibit  such  expeditions  from  is- 
stiing  out  of  their  territories  ? 

The  views  of  Phillimore  do  him  great  honor.  If  contraband  trade  in  any 
article  can  be  prevented  within  the  borders  of  the  neutral,  he  is  bound,  in  right 
reason,  but  not  by  the  present  law  of  nations,  to  prevent  it. 


332 


OF  THE  RELATIONS  BETWEEN 


§ 194. 


following  enumeration  recurs  in  several  treaties  between  the 
United  States  and  Spanish  Ameidcan  republics  : “ 1.  Can- 
nons, mortars,  howitzers,  swivels,  blunderbusses,  muskets, 
fusees,  rifles,  carbines,  pistols,  pikes,  swords,  sabres,  lances, 
spears,  halberds,  hand-grenades,  bombs,  powder,  matches, 
balls,  and  all  other  things  belonging  to  the  use  of  these  arms. 

2.  Bucklers,  helmets,  breastplates,  coats-of-mail,  infantry  belts, 
and  clothes  made  up  in  a military  form  and  for  military  use. 

3.  Cavalry  belts,  and  horses  with  their  furniture.  4.  And 
generally,  all  kinds  of  arms  and  instruments  of  iron,  steel, 
brass,  and  copper,  or  any  other  material,  manufactured,  pre- 
pared, and  formed  expressly  to  make  war  by  sea  or  land.”  ^ 

2.  Horses  have  been  mentioned  as  being  contraband  in  very 
many  treaties  extending  down  into  this  century.  “ All  the 
principal  powers  have  so  looked  upon  them  at  different  times,” 
says  Mr.  Manning,  “with  the  exception  of  Russia.” 

3.  In  a few  treaties  belonging  to  the  seventeenth  century, 
unwrought  metals  and  money  have  been  so  regarded.  In 
others,  money  is  expressly  excepted,  as  in  that  of  Utrecht, 
in  1713,  in  that  of  England  with  France,  in  1786,  and  in  that 
between  Spain  and  the  United  States,  in  1795. 

4.  Naval  stores  and  materials  for  ship-building  have  been 
declared  to  be  contraband  in  many  treaties,  and  in  some  others 
have  been  excepted  from  the  list.  The  treaty  of  1794,  be- 
tween Great  Britain  and  the  United  States,  after  declaring 
several  kinds  of  naval  stores  to  be  contraband,  adds  that 
“ generally,  whatever  may  serve  directly  to  the  equipment  of 
vessels,  unwrought  iron  and  fir-planks  only  excepted,”  shall 
partake  of  this  quality.  Chancellor  Kent  says  that  the  gov- 
ernment of  the  United  States  has  frequently  conceded  that 
materials  for  the  building,  equipment,  and  armament  of  ships 
of  war,  as  timber  and  naval  stores,  are  contraband,  (i.,  137.) 
The  Englisli  prize  courts,  in  the  case  of  such  articles,  and  of 

1 As  ill  tlie  treaty  with  Columbi.a,  October  3,  1824,  with  Venezuela,  January 
20,  1836,  with  Guatemala,  March  3,  1849,  with  New  Granada,  June  10,  1846,  with 
San  Salvador,  January  2,  1850,  with  Mexico,  April  5,  1831.  The  fourth  and 
fifth  of  these  make  contraband  “ provisions  also  that  are  sent  into  a besieged  or 
blockaded  place.” 


§ 194. 


BELLIGERENTS  AND  NEUTRALS. 


333 


provisions,  have  been  led  to  adopt  a set  of  rules  of  which  we 
shall  speak  a little  beloAV.^ 

5.  Provisions  are  not  in  themselves  contraband,  hut,  accord- 
ing to  a number  of  text-writers,  as  Grotius,  Vattel,  and  sev- 
eral modern,  especially  English  authorities,  may  become  so, 
where  there  is  a jrrospect  of  reducing  the  enemy  by  famine. 
The  usage  in  regard  to  them  has  beeir  shifting.  Queen  Eliza- 
beth’s government  forbade  the  Poles  and  Danes  to  convey 
provisions  to  Spain,  on  the  ground  that  by  the  rights  of  Avar 
an  enemy  might  be  reduced  by  famine.  The  conventions, 

! Avhich,  at  various  times  in  the  seventeenth  and  eighteenth  cen- 
turies, declared  that  they  Avere  not  contraband,  shoAV  at  least 
a fear  that  bellia;erent  nations  would  treat  them  as  sirch.  At 
the  outburst  of  the  Avar  succeeding  the  French  Revolution, 
Avhen  France  was  almost  in  a state  of  famine,  conv^entions  Avere 
made  betAveen  Great  Britain  on  the  one  hand,  and  Russia, 

J Spain,  Portugal,  Prussia,  and  Austria  on  the  other,  Avhich  re- 
stricted the  conveyance  from  their  respective  ports  into  France, 
of  naA’al  and  military  stores,  and  of  provisions,  — Avhether  ce- 
real grains,  salt  fish,  or  other  articles.  ■ The  French  Conven- 
I tion,  also,  in  the  same  year,  1793,  in  Avhich  these  treaties  AA^ere 
made,  declared  that  cargoes  of  neutral  ships,  consisting  of 
I grain,  and  destined  for  a hostile  port,  might  be  seized  for  the 
i use  of  France,  on  the  principle  of  preemption,  of  Avhich  Ave 
shall  presently  speak.  These  measures,  in  regard  to  provisions 

^ Ships  ready  made  and  capable  of  use  for  imrposes  of  war  hare  not  occupied 
the  attention  of  treaty-making  powers.  Iliibner  declares  them  contraband. 

[ Heffter  is  of  the  same  judgment.  (§  \5~,h.)  riiillimore  says  “that  the  sale 

; of  a dVip  for  purposes  of  war,  is  the  sale  of  the  most  noxious  article  of  war.  The 

; sale  by  a neutral  of  any  ship  to  a belligerent  is  a very  suspicious  act  in  the  opin- 

I ion  of  the  English  and  North  American  prize  courts',  and  one  which  the  French 

I prize  courts  refuse  to  recognize.”  And  he  goes  on  to  cite  a case  in  which  a ship 

j adapted  to  purposes  of  war  was  sent  with  goods  on  board  to  a belligerent  port, 

I under  instructions  to  bare  her  sold  if  po.ssible,  and  was  condemned,  (iii.,  p. 
448,  ed.  2.)  Hautcfeiiille,  on  the  other  hand,  says  that  he  cannot  undestand  how 
a mere  vessel,  as  yet  unarmed,  -whatever  may  be  its  destination,  is  an  article  of 
contraband,  (ii.,  145.)  “It  is  nothing  but  a vehicle.”  And  so  sulphur  and 
i saltpetre  are  nothing  but  commodities  ; they  are  incapable  as  yet  of  a military 
j use.  Our  authorities  would  no  doubt  regard  such  vessels  as  contraband.  (Story, 
: in  7 Wheaton,  340.) 


334 


OF  THE  RELATIONS  BETWEEN 


§ 194. 


especially,  were  earnestly  resisted  by  Denmark  and  the  United 
States,  which  were  then  the  leading-  nentral  powers.  The 
treaty  of  1794,  between  Eng-land  and  the  United  States,  con- 
tains an  admission  that  provisions  and  other  articles,  not  gen- 
erally contraband,  might  become  such  according  to  the  existing 
law'  of  nations,  and  proceeds  to  prescribe  that  if  seized  they 
shall  be  paid  for,  or,  in  other  words,  allows,  as  between  the 
contracting  parties,  of  the  practice  of  preemption. 

§195. 

In  view  of  these  historical  statements,  showing  the  varjdng 

practice  of  nations  in  regard  to  certain  articles,  we 

Results  for  ^ ° 

cieteimining  may  Say, 

what  arti-  . , • i i i ^ 

cicsarecon-  1.  1 hat  Call  lustly  be  reffiirded  as  con- 

traband.  ” i iiii  r 

traband,  unless  so  regarded  by  the  law  of  nations,  or 
by  expiess  convention  between  certain  parties.  The  defini- 
tion of  contraband  must  be  clea)-  and  positive.  For  as  bellig- 
erents are  authorized  to  inflict  severe  evils  on  neutrals  trading 
in  contraband  articles,  it  is  phiin  that  they  alone  cannot  define 
in  what  contraband  consists.  The  heavy  penalty  implies  a 
heavy  crime,  understood  to  be  such  when  the  penalty  was  al- 
lowed. There  must  be  certain  kinds  of  articles,  such  as  afford 
direct  assistance,  not  to  the  enerny.,  hut  to  the  enemy's  military 
operations.,  and  known  beforehand.,  and  hence  implying  a de- 
parture from  the  spirit  and  rules  of  neuti-ality,  which  can  be 
seized  and  confiscated.  Or,  since  the  articles  of  direct  use  in 
war  may  change  from  age  to  age,  at  the  most,  new  articles 
— as,  for  instance,  in  these  days  of  war-steamers,  steam-en- 
gines, coals,  and  the  like  — can  justly  come  into  this  list  only 
when  there  is  satisfactory  proof  that  they  are  for  the  direct  uses 
of  war.  And  this,  of  course,  only  where  treaty  has  not  speci- 
fied certain  definite  articles,  and  such  alone.  In  conformity 
.with  this  yninciple,  an  order  of  council  of  Great  Britain,  dated 
February  18,  1854,  prohibits  the  exportation  from  the  king- 
dom, or  by  conveyance  coastwise,  of  the  parts  of  machinery 
used  in  steam-vessels.  See  Phillimore,  iii.,  149,  who  adds 
that  coal  may,  under  the  particular  circumstances  of  the  case, 


§ 195. 


BELLIGERENTS  AND  NEUTRALS. 


335 


regard  being  had  to  its  quality  and  destination,  become  liable 
to  seizure. 

Thus,  in  these  days  of  -war-steamers,  the  supply  of  coal  to 
belligerent  vessels  of  that  sort  becomes  of  great  importance. 
Shall  coal  be  withheld  from  them  like  ammunition,  or  is  it  a 
necessary  for  motion,  like  sails  to  a cruiser  that  has  suffei'ed 
in  a storm?  The  English  regulations  of  January  31,  1862, 
direct  that  ships-of--war  or  privateers  of  either  belligerent  shall 
be  furnished  with  only  so  much  coal  as  may  be  sufficient  to 
carry  them  to  the  nearest  port  of  their  country,  or  to  some 
nearer  destination,  and  that  no  coal  shall  be  again  supplied  to 
any  such  ship-of--war  or  privateer  in  the  same  or  any  other 
port  under  British  jurisdiction  Avithout  special  permission, 
until  after  the  expiration  of  three  months  from  the  time  of 
the  previous  supply.  For  the  difficulties  attending  such  legu- 
lations  as  deny  to  belligerent  A'essels  the  ordinary  hospitalities 
of  friendly  ports  see  Professor  Bernard's  “ British  Neutrality,” 
p.  415  et  seq.,  and  comp.  pp.  139-140. 

2.  The  doctrine  of  occasional  contraband,  or  contraband  ac- 
cording to  circumstances,  is  not  sufficiently  definite  oec.ir.iouai 
and  fixed  to  be  regarded  as  a part  of  the  la  w of  na- 
tions,  although  English  and  American  courts  accept  of  it. 
Naval  stores  and  provisions  are  the  articles  Avhich  come  here 
under  our  notice  : uoav  as  these  may  foran  the  principal  ex- 
ports of  a nation,  it  is  jilain  that  by  this  rule  the  neutral's 
trade  may  be  quite  destroyed.  The  rule  Avould  thus  be  exces- 
sively harsh,  if  the  usual  penalty  hanging  over  contraband 
Avere  inflicted.  To  mitigate  this  severity,  and  in  a certain 
sense  to  pacify  neutrals,  the  British  prize  judges,  especially 
Sir  William  Scott,  adopted  certain  discriminating  rules,  ac- 
cording to  which  the  articles  in  question  partook  more  or  less 
of  the  contraband  character.  Thus,  if  they  were  the  produce 
of  the  country  from  Avhich  they  had  been  exported,  or  in  an 
unmanufactured  slate,  or  destined  to  a commercial  port,  they 
AA’ould  be  vieAved  Avith  greater  imlulgence  than  if  shipped  from 
a country  Avhere  they  Avere  not  groAvn,  or  in  a manufactured 
state,  or  destined  to  a naval  station.  Sir  William  Scott  after- 


336 


OF  THE  RELATIONS  BETWEEN 


§ 195. 


wards  withdrew  his  indulgence  from  naval  stores  destined  to 
a commercial  port,  on  the  ground  that  they  could  he  used 
there  to  equip  privateers,  or  be  transported  to  a port  of  naval 
equipment. 1 And  in  some  cases  a yet  milder  rule  Avas  adopted 
by  Great  Britain,  — that  of  preemption,  of  which  we  shall 
speak  by  itself. 

§196. 

In  regard,  noAV,  to  this  doctrine  of  occasional  contraband, 
Is  it  just,  say,  that  it  is,  imjuat  to  neutrals.  If  it  be 

tioncd’by  doubtful  Avlicther  an  article  pertains  to  the  class  of 
usage?  contraband  or  not,  the  penalty  attached  to  this  class 
of  articles  ought  cei’tainly  not  to  be  levied  upon  it.  It  is 
either  contraband  or  not,  and  is  not  so,  if  there  is  a doubt  to 
what  class  it  belongs.  To  visit  it  Avith  a half  penalty,  because 
it  is  of  doubtful  character,  is  like  punishing  on  a lower  scale  a 
crime  half  proven.^ 

Secondly.  Does  usage  sanction  occasional  contraband?  So 
far  as  I can  see,  the  most  that  can  be  said  is  that  belligerents 
have  sometimes  put  doubtful  articles  into  the  list  of  contra- 
band, and  neutrals  have  sometimes  submitted  to  it ; but  that 
no  clear  practice  appears  to  have  prevailed.  The  rule,  then, 
Avill  amount  to  this,  — that  the  belligerent,  if  a leading  mari- 
time poAver,  Avill  set  up  rules  according  to  his  OAvn  interest  at 

1 Comp.  Wheaton,  Elements,  iv.,  3,  § 24,  p.  .'519. 

2 Comp.  Dana  on  Wheaton,  226,  who  criticises  a remark  of  mine  at  the  be- 
ginning of  § 196  (formerly  § 181),  .and  perhnps  justly.  The  main  point  is  proof 
of  intention  to  aid  the  militan/  operations  of  the  enemy  by  the  exportation  of  a 
particular  article.  As  for  what  is  said  in  § 19.'5,  2,  “that  the  doctrine  of  occa- 
sional contraband  is  not  vet  sufficiently  established  to  be  regarded  as  a part  of  the 
law  of  nations,”  pcrh.'ips  that  is  too  strong  an  expression,  yet  to  put  the  decision 
what  is  contral>and  into  the  hands  of  a belligerent  for  the  time  is,  I must  say, 
monstrotis.  The  needs  of  w.ar  change  continually.  According  to  th.at  principle, 
a belligerent  could  give  out  a half  a dozen  rules  during  a war  of  an_v  length, 
and  greatly  oppress  neutrals.  If  a belligerent  would  kec])  out  articles  which 
Averc  of  use  to  a particular  jdace,  btit  not  otherwise  generally  prohibited,  let  him 
use  his  right  of  blockade.  As  for  Avriters  on  the  law  of  nations  I may  refer  to 
Bluntschli,  d/or/.  lo/c/rerr.,  § 807,  Avho  says,  “It  is  against  good  usage  (“gute 
Sitte  ”)  to  treat  the  trade  in  provisions  as  contraband  of  war,  although  iho  same 
serves  for  the  use  of  the  hostile  army.”  But,  he  adds  that  a surrender  of  a be- 
sieged or  blockaded  jjlace  mtiy  be  brought  about  by  starvation. 


§ 196. 


BELLIGEEENTS  AND  NEUTRALS. 


337 


tlie  time,  and  carry  them  through.  Is  not  this  an  unsettling 
of  all  international  rules,  a real  tyranny  of  a superior  power? 

Thirdly.  The  authority  of  the  older  text-writers  is  more 
in  favor  of  such  a distinction.  In  an  often-cited  passage  of 
Grotins  (iii.,  I,  § 5),  after  dividing  things  in  the  hands  of 
those  who  are  not  enemies  into  such  as  have  a use  in  war 
alone,  such  as  have  no  use  in  war,  and  such  as  have  a use  in 
war  and  aside  from  war,  he  says  that  in  regard  to  this  third 
class  of  articles  ancipitis  usus  ; “ si  tueri  me  non  possum,  nisi 
qiuE  mittuntur  intercipiam,  necessitas,  ut  alibi  exposuimus,  jus 
dabit,  sed  sub  onere  restitutionis,  nisi  causa  alia  accedat.” 

1 His  commentator,  Samuel  de  Cocceii,  on  this  passage  observes, 
that  “ necessity  gives  no  right  over  the  goods  of  another ; so 
that  if  my  enemy  is  not  aided  by  such  articles,  I cannot  inter- 
cept them,  although  I may  be  in  want  of  them.  On  the  other 
hand,  if  the  power  of  the  enemy  is  thereby  increased,  I can 
take  them,  albeit  I may  not  need  them  myself.”  ^ Bynker- 
shoek,  although  he  differs  from  Grotins  as  to  the  rule  of  ne- 
[ cessity,  and  regards  a commerce  in  the  raw  materials  of  war 

i as  not  illicit,  yet  thinks  they  ma}^  be  prohibited,  if  the  en- 

emy cannot  well  carry  on  war  without  them.  ( “ Qua^st,  J. 
j P.,”  i.,  10.)  And  Vattel  decides  that  even  provisions  are  con- 
traband in  certain  junctures,  when  we  have  hopes  of  reducing 
; an  enemy  by  famine. 

Modern  English  writers  and  Chancellor  Kent  give  their 
sanction  to  the  doctrine  of  occasional  contraband,  opinions  in 
while  Wheaton,  without  expressing  a positive  opin-  respect  to  it. 
ion,  seems  averse  to  it.  Several  Continental  authors  of  repute 
either  deny  it  to  be  a part  of  the  law  of  nations,  or  admit  it 
with  cautious  reseiwe.  Heffter  says  (§  160),  “Never  have 
belligerents  been  allowed,  alone,  and  according  to  their  good 
pleasure,  to  make  restrictions  of  this  kind,  although  wheu 
])ossessed  of  powder  enough  they  have  assumed  to  do  this.” 
And  he  adds,  in  regard  to  doubtful  articles,  that  belligerents 
can  take  measures  against  neutrals  exporting  them  only  when 
a destination  for  the  enemy’s  government  and  military  forces 

1 Lausanne  eel.  of  Gpotius,  vol.  iii.,  p.  602. 

22 


838 


OF  THE  RELATIONS  BETWEEN 


§ 196. 


can  be  ascribed  to  them  on  sufficient  grounds.  Ortolan  (ii., 
179)  denies  that  provisions  and  objects  of  prime  necessity 
can  ever  be  considered  contraband,  but  conc'eiles  that  a belli<>:- 
erent  may  dcelarc  objects  to  be  contraband  which  are  not 
usually  such,  Avhen  they  become  what  he  calls  contraband  in 
disguise,  as  the  parts  of  military  machines  conveyed  separately, 
and  ready  to  be  put  together.  His  countryman,  Hautefeuille 
( “Droits  des  Nations  Neutres,”  ii.,  419  i),  maintains  that  no 
products  of  use  in  peace  and  war  both  can  in  any  case  be  con- 
traband, “ and  that  nothing  else  is  contraband  but  arms  and 
munitions  of  Avar  actually  manufactured,  proper,  immediately 
and  Avithout  any  preparation  or  transformation  by  human  in- 
dustry, to  be  employed  in  the  uses  of  Avar,  and  not  capable  of 
receiving  any  other  destination.”  Kliiber,  after  saying  (§  288) 
that  naval  stores  and  materials  are  not  to  be  reckoned  contra- 
band, adds,  that  in  case  of  doubt  as  to  the  quality  of  particu- 
lar articles  the  juristic  presumption  inclines  to  the  side  of 
natural  right,  Avhich  alloAvs  the  natural  freedom  of  trade.  De 
Martens  says  (§  318)  that  “ Avhere  no  treaties  inteiwened, 
the  powers  of  Europe,  Avhen  they  AV'ere  neuter,  maintained 
long  before  1780  [the  date  of  the  first  armed  neutrality]  that 
only  articles  of  direct  use  in  AAvar  could  be  considered  and 
treated  as  contraband  by  belligerents.”  The  United  States, 
it  is  belieA’ed,  has  steadily  taken  this  ground  in  regard  to  pro- 
visions, although  not  in  regard  to  naval  stores. 

The  doctrine  of  occasional  contraband  received  its  Avidest 
extension  in  the  Avar  of  England  against  revolutionary  France. 
The  British  representatUe  to  our  goATrnment  claimed,  in 
1793  and  1794,  that  by  the  law  of  nations  all  provisions  Avere 
to  be  considered  as  contraband,  in  the  case  Avdiere  the  depriv- 
ing the  enemy  of  these  supplies  Avas  one  of  the  means  em- 
ployed to  l educe  him  to  reasonable  terms  of  peace,  and  that 
the  actual  situation  of  Frame  Avas  such  as  to  lead  to  that 
mode  of  di.stiessing  her,  inasmuch  as  she  had  armed  almost 
the  Avliole  laboiing  clas.s  of  (he  people  for  the  purpose  of  com- 
mencing and  supptorting  hostilities  against  all  the  goverm 
1 1st  ed.  Comp,  ii.,  157,  2d  ed. 


§ 197. 


BELLIGEEENTS  AND  NEUTRALS. 


339 


ments  of  Europe.^  If  a government  h;id  armed  nearly  its 
whole  laboring  population,  the  laws  of  political  economy  would 
probably  reduce  it  to  weakness  far  sooner  than  the  cruisers  of 
its  enemy  would  have  that  effect. 

It  may  be  added  that  the  French  National  Convention  led 
the  way  in  seizing  neutral  ships  laden  with  provisions,  and 
bound  to  an  enemy’s  port,  by  a decree  of  May  9,  1793,  which 
provoked  a retaliatory  measure  of  Great  Britain,  in  June  of 
the  same  year.  (Phillimore,  iii.,  422,  ed.  2.)  The  decree  (for 
which  see  Marten’s  “ Recueil,”  v.,  382,  and  the  reprint  of  the 
“ Moniteur,”  xvi.,  351)  ordains  that  the  provisions  shall  be 
paid  for,  at  their  value  at  the  port  of  their  destination,  to- 
gether with  the  freight  stipulat-vd  by  the  shipper,  and  with 
j compensation  for  detention,  as  determined  by  a prize  court. 

I The  same  decree  contains  the  article  referred  to  in  § 189 
(last  paragraph  but  two),  relating  to  enemy's  goods  on  board 
of  neutral  vessels. 

§ 197. 

The  harshness  of  the  doctrine  of  occasional  contraband 
brought  into  favor  the  rule  of  preemption,  which 
was  a sort  of  compromise  ^ between  the  belligerents 
(if  masters  of  the  sea)  and  the  neutrals.  The  former  claimed 
that  such  articles  should  be  confiscated,  the  latter  that  they 
I shonld  go  free.  Now,  as  the  belligerent  often  wanted  these 
j articles,  and  at  least  could  hurt  his  enemy  by  forestalling 
I them,  it  came  nearest  to  suiting  both  2)arties  if,  when  they 
i were  intercepted  on  the  ocean,  the  neutral  was  compensated 
i by  the  p)ayment  of  the  market  price,  and  of  a fair  profit. 

This  rule,  which  was  more  especially  aj^plied  by  the  Eng- 
lish prize  courts  shortly  after  the  French  Revolution,  would  be 
a relaxation  of  the  severe  right  of  war,  if  the  doctrine  of  occa- 
sional conti  aband  could  be  established,  and  as  such,  be  a con- 
I cession  to  neutrals.  But  it  does  not,  as  an  independent  rule, 
possess  sufficient  support  from  usage  and  authority.  There 
are  two  sources  from  which  arguments  in  its  support  have 

1 Kent,  i.,  1.37,  Lect.  vii. 

2 So  Sir  W.  Scott  calls  it  in  Robinson’s  Rep.,  i.,  241. 


340 


OF  THE  EELATIONS  BETWEEN 


§ 197. 


been  derived : (1.)  An  old  practice  of  European  governments 
was  to  seize  the  grain  or  other  necessary  articles  found  in  the 
hands  of  foreigners  in  their  ports,  on  promise  of  compensa- 
tion, which  naturally  would  be  slow  in  coming.  Many  treaties 
of  tlie  seventeenth  century  put  an  end  to  this  half-barbarous 
exercise  of  sovereignty  between  the  contracting  powers,  and 
it  is  believed  to  be  unknown  to  the  law  of  nations,  unless 
(2.)  under  the  form  of  a rule  of  necessity.  Such  a rule  in  a 
broad  sense  would  authorize,  xolietlier  in  war  or  peace.,  the  tak- 
ing of  proj)erty  from  subjects  or  foreigners,  if  self-preserva- 
tion required  it.  A more  limited  necessity  is  contemplated  in 
the  passage  of  Grotius  already  cited,  as  pertaining  to  a bel- 
ligerent, and  justifying  him  in  detaining  the  goods  of  those 
who  are  not  enemies,  if  otherwise  he  cannot  defend  himself. 
But  modern  preemption  is  limited  in  extent  to  cai’goes  of  neu- 
trals bound  to  the  enemy’s  ports,  and  is  practiced  to  distress 
the  enemy,  not  to  relieve  an  imminent  distress  of  one’s  own. 
“ I have  never  understood,”  says  Sir  William  Scott,  “ that  this 
claim  [of  preemption]  goes  beyond  the  case  of  cat’goes  avow- 
edly bound  for  enemy’s  ports,  or  suspected  on  just  grounds  to 
have  a concealed  destination  of  that  kind.” 

Here  we  may  ask  whether  modern  preemption  rests  on  any 
ground  of  justice.  On  this  point  we  remark : (1.)  That  the 
nearest  analogy  is  the  taking  away  in  a hostile  country  of  nec- 
essaries from  the  non-belligerent  inhabitants  for  the  use  of  the 
invading  army.  This  is  a right  of  war  in  extreme  cases,  but 
is  allowed,  unlike  preemption,  for  the  sake  of  the  invaders. 
Pillage  for  its  own  sake  is  unlawful.  (2.)  It  is  contrary  to 
the  spirit  of  the  rules  of  1856.  The  neutral  flag  covers  ene- 
my’s  goods  ; how  much  more  ought  it  to  cover  its  own  innocent 
goods.  (3.)  It  almost  reaches  the  position  that  paper  block- 
ades are  defensible.  It  says,  I will  take  your  wheat  from  you 
whether  you  are  bound  to  a blockaded  port  or  not. 

The  English  practice  in  cases  of  preemption  is  to 
practice  of  pay  a reasonable  indemnification  and  a fair  profit  on 

preemption.  , . 

the  commodity  intercepted,  but  not  to  pay  the  price 
which  could  be  obtained  in  the  enemy’s  ports.  In  a treaty 


§ 198.  BELLIGERENTS  AND  NEUTRALS.  341 

with  Sweden  of  1803,  it  was  arranged  that  in  seizures  of  this 
kind  the  price  of  the  merchandise  should  be  paid,  either  as 
valued  in  Great  Britain  or  in  Sweden,  at  the  option  of  the 
proprietor,  with  a profit  of  ten  per  cent,  and  an  indemnity  for 
freight  and  expenses  of  detention.  In  the  treaty  of  1794, 
already  referred  to,  between  Great  Britain  and  the  United 
States,  it  is  said  “that  whereas  the  difficulty  of  agreeing  on 
the  precise  cases,  in  which  provisions  and  other  articles  of  con- 
traband may  be  regarded  as  such,  renders  it  expedient  to  pro- 
vide against  the  inconveniences  and  misunderstandings  which 
might  thence  arise,  ....  whenever  any  such  articles  so  becom- 
ing conti’aband  according  to  the  existing  law  of  nations  shall 
for  that  reason  be  seized,  ....  the  captors,  or  in  their  default 
the  government,  under  whose  authority  they  act,  shall  pay  the 
full  value,  ....  with  a reasonable  mercantile  profit  thereon,  to- 
gether with  the  freight  and  also  the  damages  incident  to  such 
detention.”  (Article  xviii.)  The  expression  “ becoming  con- 
traband according  to  the  existing  law  of  nations  ” left  the 
question.  What  the  laAv  of  nations  decided,  an  open  one ; if  the 
United  States,  for  instance,  denied  that  certain  articles  seized 
as  contraband  w^ere  legally  such,  they  could  not  yield  their 
opinion,  and  preemption  itself  in  such  cases  might  be  a cause 
of  complaint  and  even  of  war.  This  was  an  unfortunate  half- 
way admission,  which  left  everything  unsettled,  and  yet  jus- 
tified the  other  party  to  the  convention  in  their  measures  of 
detention  on  the  seas. 

§ 198. 

If  the  contraband  articles  are  clearly  intended  for  the  ene- 
my’s use,  especially  if  they  are  moi’e  in  quantity  than 
the  ship’s  company  need,  they  are  subject  to  confis-  contraband 
cation  on  being  captured,  and  no  freight  is  paid  for 
them  to  the  transporter.  Ancient  French  ordinances,  before 
the  ordinance  of  1681,  prescribed  a much  milder  course : the 
value  of  the  contraband  articles,  at  the  e.stimate  of  the  admiral 
or  his  lieutenant,  was  to  be  paid  after  bringing  the  ship  so 
freighted  into  port.  Ancient  usage,  in  general,  made  the  ship 
also  liable  to  confiscation : the  commercial  treaty  of  Utrecht, 


342 


OF  THE  KELATIONS  BETWEEN 


§198. 


in  1713,  points  at  this  where  it  says,  that  “the  ship  itself,  as- 
Avell  as  the  other  goods  found  therein,  are  to  he  esteemed  free, 
neitlier  may  they  be  detained  on  pretense  of  their  being,  as  it 
were,  infected  by  the  prohibited  goods,  much  less  shall  they 
be  confiscated  as  lawful  prize.”  The  modern  ride,  pretty 
uniformly  acknowledged,  seems  to  be,  that  the  ship  and  the 
goods  that  are  not  contraband  go  free,  except  where  one  or 
both  pertain  to  the  owner  of  the  contraband  articles,  or  where 
false  papers  show  a privity  in  carrying  them.^  The  justice  of 
confiscating  the  ship  in  both  these  cases  is  plain  enough,  for 
there  is  an  evident  intention  of  violating,  by  means  of  the 
vessel,  the  duties  of  neutrals.  Whether,  when  the  rest  of  the 
cargo  belongs  to  the  same  owner,  it  should  be  thus  severely 
dealt  with,  may  be  fairly  doubted.  Bynkershoek  ( “ Qiisest.  .1. 
P.,”  i.  12)  decided  in  favor  of  confiscation,  “ ob  continentiam 
delicti ; ” and  Sir  William  Scott  gives  as  his  reason  for  a sim- 
ilar opinion,  “ that  where  a man  is  concerned  in  an  illegal 
transaction,  the  wdiole  of  his  property  involved  in  that  transac- 
tion is  liable  to  confiscation.”  The  penalty  ceases  after  the 
objectionable  goods  have  been  conveyed  to  their  port. 

In  two  other  cases  the  confiscation  of  the  ship  has  some.- 
times  been  enforced,  — when  the  contraband  goods  makeup 
three  quarters  of  the  value  of  the  cargo,  and  when  the  owner 
of  the  vessel  is  bound,  by  special  treaties  of  his  government 
with  that  of  the  captor,  to  abstain  from  a traffic  of  this  de- 
scrijdion.  Tlie  first  resolves  itself  into  a rule  of  evidence  in 
regard  to  the  complicity  of  the  ship,  and  needs  not  to  be  made 
a distinct  case ; the  other  assumes,  Avithout  reason,  that  the 
OAvner  of  the  vessel  must  have  a knoAvledge  of  the  cargo,  and 
is  not  generally  acknowledged. 

In  regard  to  the  duration  of  the  liability  to  compensation, 
the  same  authority  gives  the  rule  (case  of  The  Imina, 
Ha’bnity"to  3 Rob.  Rep.,  168)  : “ That  the  articles  must  be 
penalty.  -^akeu  hi  delicto,  in  the  actual  prosecution  of  a voy- 

age to  an  enemy’s  port.  Under  the  present  understanding 

1 Of  course  where  the  sliip  is  .fitted  for  the  naval  warfare  of  the  enemy,  it  is 
liable  to  confiscation  on  another  ground. 


§,198. 


BELLIGERENTS  AND  NEUTRALS. 


343 


of  the  law  of  nations  you  cannot  take  the  proceeds  in  the  re- 
turn voyage.  From  the  moment  of  quitting  a hostile  port, 
indeed,  the  offense  is  complete,”  etc.  In  a subsequent  case 
the  liability  to  capture  of  a ship  carrying  contraband  articles 
with  the  help  of  false  papers^  was  held  to  continue  until  the 
end  of  the  return  voyage,  as  in  the  parallel  case  of  breach  of 
blockade  according  to  English  usage.  A vessel  from  Balti- 
more, after  carrying  contraband  to  the  Isle  of  France  with 
false  papers,  performed  a number  of  different  voyages,  in 
which  she  continued’ to  be  occupied  from  1804  to  1807,  and 
on  sailing  back  from  Batavia  to  Baltimore,  was  captured  by  a 
British  cruiser.  She  was  condemned,  together  with  the  cargo 
belonging  to  her  owner,  and  Sir  W.  Grant  pronounced  the 
principle  to  be  that,  “ if  a vessel  carried  contraband  on  the 
outward  voyage,  she  is  liable  to  condemnation  on  the  return 
voyage.  It  is  by  no  means  necessary  that  the  cargo  should 
have  been  purchased  by  the  proceeds  of  the  contraband.” 
The  two  decisions  are  at  variance,  unless  the  vessel’s  guilt 
sticks  longer  than  that  of  the  contraband  articles  does,  or 
unless  false  papers  extend  it.  (Case  of  The  Margaret^  1 Ac- 
ton’s Rep.,  334,  et  seqf 

Here  Ave  may  add  that,  by  an  English  decision,  a neutral 
Danish  A’essel,  stopping  at  the  Cape  of  Good  Hope  on  her  way 
to  a Danish  settlement,  Tranquebar,  Avitli  both  contraband  and 
innocent  articles  on  board,  the  latter  of  AA'hit  h she  intended  to 
sell  at  the  Cape,  as  Avell  as  to  deli\'er  letters  to  Dutch  magis- 
trates, AA-as  exempted  from  penalty  on  the  ground  that  mean- 
Avhile  the  Cape  Colony  had  surrendered  to  the  English,  and 
Avas  noAv  in  their  possession.  (Case  of  the  Trende  Sostre^  6 
Rob.  Rep.,  391,  note.) 

Among  treaties  modifying  the  penalty  in  cases  of  contra- 
band, that  betAveen  the  United  States  and  Prussia, 

AA'hicli  Franklin  negotiated  in  1785  (comp.  § 128),  urin^gSe'^' 
and  the  article  of  which  relating  to  tliis  subject  was 
inserted  in  the  neAV  treaty  of  1799,  deserves  especial  mention. 
It  is  there  provided,  Avith  regard  to  military  stores,  that  the 
A'essels  having  them  on  board  may  be  detained  “ for  such  length 


344 


OF  THE  RELATIONS  BETWEEN 


§ 198. 


of  time  as  the  captors  may  think  necessary  to  prevent  the  in- 
convenience or  damage  that  might  ensue  from  tlieir  proceed- 
ing, paying,  however,  a reasonable  compensation  for  the  loss 
such  arrest  shall  occasion  to  the  proprietors  ; and  it  shall  fur- 
ther  be  allowed  to  use  in  the  service  of  the  captors  the  whole, 
or  any  part  of  the  military  stores  so  detained,  paying  the 
owners  the  full  value  of  the  same,  to  be  ascertained  by  the 
current  price  at  the  place  of  its  destination.  But  in  a case 
supposed  of  a vessel  stopped  for  articles  of  contraband,  if  the 
master  of  the  vessel  stopped  will  deliver  out  the  goods  sup- 
posed to  be  of  a contraband  nature  he  shall  be  admitted  to  do 
it,  and  the  vessel  shall  not  in  that  case  be  carried  into  any 
port,  nor  further  detained,  but  shall  be  allowed  to  proceed  on 
her  voyage.”  ^ 

§199. 

If  the  obligations  of  neutrality  forbid  the  conveyance  of  con- 
traband goods  to  the  enemy,  they  also  forbid  the  neu- 
vcyance  of  tral  to  convey  to  him  ships,  whether  of  war  or  of 
trocTpa  and  ti'anspoi’t,  witli  thcii’  crews,  and  still  more  to  forward 
despatches,  ti  oops  Olid  his  despatches.  These  have  sometimes 
been  called  contraband  articles,  which  name  a treaty  of  Eng- 
land with  Sweden  in  1691  expressly  gives  to  soldiers  together 
with  horses  and  ships  of  war  and  of  convoy They  have  been 
called,  again,  “ contraband  par  accident.”  But  in  truth,  as 
Heffter  remarks,  they  are  something  more  than  contraband,  as 
connecting  the  neutral  more  closely  with  the  enemy.  A con- 
traband trade  may  be  only  a continuation  of  one  which  was 
legitimate  in  peace,  but  it  will  rarely  happen  that  a neutral 
undertakes  in  time  of  peace  to  send  troops  of  war  to  another 
nation,  and  the  carrying  of  hostile  despatches  implies  a state 
of  war.  These  two  kinds  of  transport  deserve  a more  extended 
discussion. 

1 This  treaty  was  terminable  in  twelve  years,  or  afterwards  on  twelve  months’ 
notification.  A similar  provision  in  the  treaty  of  1800  with  France  expired  in 
1808.  Nine  like  treaties  with  Spanish-American  republics  are  still  in  force.  If 
the  goods  are  such  in  quantity  that  they  can  be  handed  over  the  neutral  can  go  on 
his  way.  Otherwise  the  ship  must  go  to  the  nearest  safe  port. 

2 Marquardsen,  (fe)'  Trent-Fall,  p.  51. 


§ 199. 


BELLIGEEENTS  AND  NEUTEALS. 


345 


1.  The  conveyance  of  troops  for  a belligerent  has  long  been 
regarded  as  Inghly  criminal.  In  the  commercial  treaty  of 
Utrecht  of  1713  (Dumont,  viii.,  i.,  345),  between  France  and 
Great  Britain,  it  is  provided  that  the  liberty  granted  to  goods 
on  a free  or  neutral  ship  “shall  he  extended  to  persons  sailing 
on  the  same,  in  such  wise  that,  though  they  be  enemies  of  one 
or  both  the  pai’ties,  they  shall  not  be  taken  froi%the  free  ship, 
unless  they  be  military  persons,  actually  in  the  service  of  the 
enemy.”  Many  modern  treaties  contain  the  same  exception 
from  the  protection  of  the  neutral  flag  and  in  nearly  the  same 
Avords;  as  for  instance  those  of  1785  and  1800  between  France 
and  the  United  States,  and  those  of  the  latter  Avith  Guatemala, 
San  Sahauloi-,  and  Peru.^  Our  formula  of  exception  is  “ un- 
less they  are  officers  or  soldiers,  and  in  the  actual  service  of 
the  enemy.”  As  for  the  number  of  persons  of  this  sort,  so 
transported,  AA'hich  Avill  invoh'e  a vessel  in  guilt  and  lead  to  its 
condemnation,  it  may  perhaps  be  said  that  a soldier  or  tAA’o, 
like  a package  or  tAvo  of  contraband  articles,  might  be  over- 
looked; but  it  is  held  that  to  forward  o.flicers,  especially  of 
high  rank,  or  oven  a single  officer,  aa'ouIcI  subject  the  neutral 
A^essel  to  confiscation.  (^TJie  Orozembo,  Robinson’s  Rep.,  A’i., 
434,  Phillim.,  iii.,  § 272.)  A modern  case  shoAvs  the  rigor  of 
the  English  courts  in  regard  to  such  transportation.  The 
Bremen  ship  Greta  was  condemned  in  1855,  during  the  Cri- 
mean Avar,  by  a piize  court  at  Hong  Kong,  for  carrying  two 
hundred  and  seA^enty  shipAArecked  Russian  officers  and  seamen 
from  a Japanese  to  a Russian  harbor,  — although  had  this  con- 
duct been  dictated  by  mere  humanity  condemnation  could  not 
have  taken  place.^ 

2.  No  rule  of  international  laAV,  forbidding  the  conveyance 
of  hostile  despatches,  can  be  produced,  of  an  earlier  date  than 
the  first  years  of  the  present  centiu’y.  Sir  William  Scott  (Lord 
Stowell)  seems  to  haA'e  struck  out  this  rule,  as  a deduction, 
and  Ave  may  say,  as  a fair  deduction,  from  the  general  obliga- 
tion of  neutrality.  The  general  doctrine  of  the  English  courts 

1 JIarqiiardsen,  ii.  s.  p.  61. 

2 Ibid.,  p.  39. 


346 


OF  THE  RELATIONS  BETWEEN 


§ 199. 


is  this.  Despatches  are  official  communications  of  official  per- 
sons on  the  public  affairs  of  government.  Letters  of  such 
persons  concerning  their  own  private  affairs,  and  letters  writ- 
ten Ly  unofficial  persons,  are  not  despatches.  Communications 
from  a hostile  government  to  one  of  its  consuls  in  a neutral 
country,  Unless  proved  to  be  of  a hostile  nature,  and  despatches 
of  an  enemy^  ambassador  resident  in  a neutral  country,  are 
excepted  from  the  rule,  on  the  ground  that  they  relate  to 
intercourse  between  the  hostile  state  and  a neutral,  which  is 
lawful,  and  which  the  other  belligerent  may  not  obstruct. 
Tin*  comparative  importance  of  the  despatches,  if  within  the 
rule,  is  immaterial. 

In  order  to  make  the  carrying  of  enemy’s  despatches  an 
offense,  the  guilt  of  the  master  must  be  established.  If  the 
despatches  are  put  on  board  by  fraud  against  him,  no  pen- 
alty is  incurred  by  the  ship.  If  he  sails  from  a hostile  port, 
and  especially  if  the  letters  are  addressed  to  persons  in  a hos- 
tile country,  stronger  proof  is  needed  that  he  is  not  privy  to 
a guilty  transaction  than  if  the  voyage  began  in  a neutral 
country,  and  was  to  end  at  a neutral  or  open  port. 

If  the  shijimaster  is  found  guilty  of  convejing  hostile  de- 
spatches, the  ship  is  liable  to  condemnation,  and  the  cargo  is 
confiscable  also,  both  “ ob  continentiam  delicti,”  and  because 
the  agent  of  the  cargo  is  guilty.  But  if  the  master  is  not 
such  an  agent,  his  guilt  will  not  extend  beyond  the  vessel. 

This  rule,  in  its  general  form,  if  not  in  its  harsher  features, 
may  be  said  to  have  passed  into  the  law  of  nations.  Not 
only  the  declarations  of  England  and  France,  made  in  the 
spring  of  1854  (§  190,  note),  but  the  contemporaneous  ones  of 
Sweden  and  Prussia  sanction  it,  and  the  government  of  the 
United  States  m one  instance  has  accepted  it  as  a part  of  the 
law  of  nations.  It  is  received  as  such  by  text-writers  of  va- 
rious nationalities,  by  Wildman  and  Phillimore,  by  Wheaton, 
by  Heffter,  Marquardsen,  and  other  German  writers,  by  Or- 
tolan and  Hautefeuille.  The  last  named  publicist  gives  a 
modification  of  the  rule,  which,  though  of  private  authority, 
deserves  serious  attention.  Despatches  can  be  transported, 


§ 199. 


BELLIGERENTS  AND  NEUTRALS. 


347 


says  lie,  from  one  neutral  port  to  anotlier,  from  a neutral  to  a 
belligerent,  or  from  a belligerent  to  a neiitr.il,  or  finally  from 
one  belligerent  port  to  another.  In  the  three  first  cases  the 
conveyance  is  ahvays  innocent.  In  the  last  it  is  guilty  only 
Avhen  the  vessel  is  chartered  for  the  purpose  of  carrying  the 
despatches  ; but  when  the  master  of  a packet  boat  or  a chance 
vessel  takes  despatches  together  with  other  mail  matter  accord- 
ing to  usage,  he  is  doing  what  is  quite  innocent,  and  is  not 
bound  to  ascertain  the  character  of  the  letters  which  are  put 
on  board  his  vessel.  Whatever  may  be  thought  of  this,  it 
may  be  seriously  doubted  whether  a neutral  ship,  conveying 
mails  according  to  usage  or  the  law  of  its  country,  cun  be 
justly  treated  as  guilty  for  so  doing.  The  analogy  from  arti- 
cles  contraband  of  war  here  loses  its  force.  When  a war 
breaks  out,  a captain  ought  to  know  what  articles  he  has  on 
board,  but  how  can  he  know  the  contents  of  mailed  letters  ? 

The  case  of  the  Trent,  in  which  this  and  several  other  prin- 
ciples of  international  law  were  involved,  may  here  the 

receive  a brief  notice.  This  vessel,  sailing  from  one 
neutral  port  to  another  on  its  usual  route  as  a packet  ship,  was 
overhauled  by  an  American  captain,  and  four  persons  were  ex- 
tracted from  it  on  the  high  seas,  under  the  pretext  that  they 
were  ambassadors,  and  bearers  of  despatches  from  the  Confed- 
erate government,  so  called,  to  its  agents  in  Europe.  The  ves- 
sel itself  was  allowed  to  pursue  its  way,  by  waiver  of  right  as 
the  officer  who  made  the  detention  thought,  but  no  despatches 
were  found.  On  this  transaction  we  may  remark,  (1.)  That 
there  is  no  process  known  to  international  law  by  which  a na- 
tion may  extract  from  a neutral  ship  on  the  high  sea  a hostile 
ambassador,  a traitor,  or  any  criminal  whatsoever.  Nor  can  any 
neuti’al  ship  be  brought  in  for  adjudication  on  account  of  hav- 
ing such  passengers  on  board.  (2.)  If  there  had  been  hostile 
despatches  found  on  board,  the  ship  might  have  been  captured 
and  taken  into  poi  t ; and  when  it  had  entered  our  waters, 
these  four  men,  'being  citizens  chai'ged  Avith  ti’eason,  Avere 
amenable  to  our  laAvs.  But  there  appears  to  have  been  no 
valid  pretext  for  seizing  the  vessel.  It  is  simply  absurd  to  say 


348 


OF  THE  RELATIONS  BETWEEN 


§ 199. 


tliat  these  men  were  living  despatches.  (3.)  The  character  of 
the  vessel  us  a pacivet  ship,  conveying  mails  and  passengers 
from  one  neutral  port  to  another,  almost  precluded  the  pos- 
sibility of  guilt.  Even  if  hostile  military  persons  had  been 
found  on  board,  it  might  be  a question  whether  their  presence 
would  involve  the  ship  in  guilt,  as  they  were  going  from  a 
neutral  country  and  to  a neutral  country.  (4.)  It  ill  became 
the  tlnited  States,  — a nation  which  had  ever  insisted  stren- 
uously upon  neutral  rights,  — to  take  a step  more  like  the 
former  Hritish  practice  of  extracting  seamen  out  of  neutral 
vessels  upon  the  high  seas,  than  like  any  modern  precedent  in 
the  conduct  of  civilized  nations,  and  that  too  when  she  had  pro- 
tested against  this  procedure  on  the  part  of  Great  Britain  and 
made  it  a ground  of  war.  As  for  the  rest,  this  affair  of  the 
Trent  has  been  of  use  to  the  world,  by  committing  Great 
Britain  to  the  side  of  neutral  rights  upon  the  seas,^ 

§ 200. 

Certain  kinds  of  trade,  as  the  coasting  and  colonial,  have 
Traiie  olosca  hecii  by  the  policy  of  most  nations  confined  to  na- 
but'oil^ned  tioiRil  vessels  in  time  of  peace  ; and  neutrals  have 
iu  war.  Peen  allowed  to  participate  in  them  only  when  war 
I’endered  the  usual  mode  of  conveyance  unsafe.  It  would  ap- 
pear, that  to  make  such  trade  lawful,  licenses  were  granted  to 
particular  vessels,  and  the  belligerent  captor  could,  with  justice 
take  the  ground,  that  the  vessel  under  license  had  identified 


1 For  tlie  snlijocts  cmlirnced  witliin  tliis  .section  see  Marqnardscn  (Prof,  at  Er- 
lan.-jpii)  Thr  Trent-VoU,  Erhuincn,  1 862.  — For  tlio  conveyance  of  troops  and  of 
(lespatclies  most  of  tlip  modern  text  writers  may  lie  consulted,  as  AYliealon,  iv.,3, 
§ 25.  Ileffrer.  § I.-)?  h : Ortolan,  il.,  21.3  ; Wildnmn,  ii.,  2.34-244  ; Phillimore,  iii., 
§ 27.3.  'I'he  cases,  wliieli  have  ])rincip:dly  determined  tlie  law  in  the  niatier  of 
dc'patidies,  are  those  of  tlie.  Atahuda,  6 Roliinson’s  Rep.  440;  Cdi'ulinii,  iliid.,4r)5; 
and  nti/inl.  Edwards’  Hep.  228.  The  Atahxnta  bronnlit  despatches  from  ihe  Frencli 
g-overnor  of  the  I.sle  of  France  to  the  French  Minister  of  IMarine,  and  was  con- 
demned ; the  Ciiroliiia,  from  tlio  Frencii  ambassador  in  the  Lnited  States,  a neu- 
tral conntrv,  to  his  lionie  government,  and  was  released.  I* or  tlie  conf.-e  which 
the  United  States  should  have  t iken  from  tlie  first  news  of  the  Trent  affair,  in 
cousisleney  with  our  past  principles,  comjjare  Mr.  Sumner’s  .speech  in  the  Senate 
of  the  United  States,  in  January,  1862. 


§201. 


BELLIGERENTS  AND  NEUTRALS. 


349 


itself  with  the  enemy.  In  the  Seven  Years’  War,  declared  in 
1756,  the  British  government  and  courts  maintained  that  this 
kind  of  trade  was  prohibited  by  the  law  of  nations  : hence  the 
principle,  that  a neutral  could  not  lawfully  engage,  during  war, 
in  a certain  trade  with  the  enemy,  from  which  he  had  been 
shut  out  in  peace,  is  called  the  rule  of  1756.  The  rule  was 
protested  against  in  1780  by  the  first  armed  neutrality,  so  far 
as  coasting  trade  was  concerned;  but  in  1793  and  onwards 
was  enforced  by  the  British  government ; although,  now,  the 
trade  was  no  longer  carried  on  by -special  license,  but  was 
opened  to  all  neutral  vessels.  The  grounds  on  which  the  rule 
stood  were,  that  the  neutral  interfered  to  save  one  of  the  bel- 
ligerents from  the  state  of  distress  to  which  the  arms  of  his  foe 
had  reduced  him,  and  thus  identified  himself  with  him.  The 
neutral  states  have  never  allowed  that  the  rule  forms  a part  of 
the  international  code.  “ Its  practical  importance,”  Dr.  Whea- 
ton observes,  “ will  probably  hereafter  be  much  diminished 
by  the  revolution  which  has  taken  place  in  the  colonial  sys- 
tem of  Europe.”  ^ 

§ 201. 

The  declaration  of  Paris,  of  1856,  by  which  the  neutral  flag 
covers  enemies’  goods,  destroyed  the  force  of  the  rule 
of  1756,  for  the  new  rule  protects  neutral  trade  in  (oionial 
innocent  articles  between  two  hostile  ports,  whether  in  neutrai-s 
such  trade  had  been  opened  to  neutrals  in  time  of 
peace  or  not.  The  rule  is  expressed  in  the  most  general  terms. 
But,  although  this  rule  is  obsolete,  and  has  gone  into  history 
for  the  most  part;  the  United  States,  not  being  a party  to 
the  above-mentioned  declaration,  may  yet  be  under  the  opera- 
tion of  the  old  British  law  in  regard  to  coasting  and  colonial 
trade.  Here  two  questions  may  be  asked,  the  one  touching 
the  lawfulness  of  coasting  trade  proper,  the  other  touching  the 
conveyance  by  neutrals  of  their  goods,  brought  out  of  foreign 
ports,  from  one  port  of  the  enemy  to  another.  Our  govern- 
ment has  contended  for  the  right  of  neutrals  to  engage  in  both 
descriptions  of  trade,  if  we  are  not  in  an  error,  while  some  of 
1 Wheaton,  Elements,  iv.,  3,  § 27,  at  the  end. 


350  OF  THE  RELATIONS  BETWEEN  §201. 

oiu-  publicists  hold  the  first  to  be  reasonably  forbidden,  the 
other  to  be  allo\Yed.  Judge  Story  says  (“  Life  and  Letters,"’  i., 
285-289)  that,  in  his  private  opinion,  “ the  coasting  trade  of 
nations,  in  its  strictest  character,  is  so  exclusively  a national 
trade,  that  neutrals  can  never  be  permitted  to  engage  in  it 
during  war  rvithout  being  affected  with  the  penalty  of  confis- 
cation. The  British  have  unjustly  extended  the  doctrine  to 
cases  where  a neutral  has  traded  between  ports  of  the  enemy 
with  a cargo  taken  in  at  a neutral  country.”  He  is  “ as  clearly 
satisfied  that  the  colonial  trade  between  the  mother- country 
and  the  colony,  where  that  trade  is  thrown  open  merely  in 
war,  is  liable,  in  most  instances,  to  the  same  penalty.  But  the 
British  have  extended  their  doctrine  to  all  intercourse  Avith 
the  colonies,  even  from  or  to  a neutral  countiy,  and  herein,  it 
seems  [to  him],  they  have  abused  the  rule.”  There  seems  to 
be  reason  for  such  a difference.  To  ojien  coasting  trade  to 
neutrals  is  a confession  of  inability  to  carry  on  that  branch  of 
trade  on  account  of  apprehensions  from  the  enemy’s  force,  and 
an  invitation  to  neutrals  to  afford  relief  from  the  pressure  of 
war.  It  is  to  adopt  a new  kind  of  vessels,  on  the  ground  that 
they  cannot  be  captured.  The  belligerent  surely  has  the  right 
to  say  that  his  attempts  to  injure  his  enemy  shall  not  be  par- 
alyzed in  this  manner.  But  he  has  no  right  to  forbid  the 
neutral  to  carry  his  own  goods  from  hostile  |)ort  to  hostile 
port,  AAdien  he  might  have  done  it  before.  Every  right  of  inno- 
cent trade,  then,  enjoyed  by  the  neutral  in  peace,  should  be 
allowed  after  the  breaking  out  of  the  Avar  ; but  neAv  rights, 
given  to  them  on  account  of  the  Avar,  may  be  disregarded  by 
the  belligerent  as  injuring  his  interests. 

llautefeuille  remarks,  on  the  other  side,  that  the  soA^ereign 
who  can  interdict  can  also  permit  a certain  Ivind  of  commerce. 
But  this  is  begging  the  question.  Can  he,  by  such  privileges, 
restrain  his  enemy  from  annoying  him  — privileges  Avbich 
are  nothing  but  taking  the  neutral  trader  into  a kind  of  part- 
nership ? Suppose  that  he  hired  Avar-A^essels  from  a neutral 
sovereign,  Avould  that  exempt  them  from  capture  ? Most  other 
continental  Avriters  have  condemned  the  rule  of  1756,  as  Or- 


§ 202. 


BELLIGERENTS  AND  NEUTRALS. 


351 


toLan,  Kaltenborn,  Heffter,  in  a qualified  way,  and  Gessner. 
Some  treaties  have  allowed  coasting  trade  to  neutrals  between 
enemies’  ports  in  war,  as  that  between  England  and  Holland 
of  1675;  that  between  Holland  and  Spain  of  1676,  1679;  the 
Treaty  of  Utrecht ; that  of  1715  between  Holland  and  Rus- 
sia; that  of  1725  between  the  German  Empire  and  Spain; 
that  of  1795  between  Spain  and  the  United  States.  In  some 
few  treaties,  again,  such  trade  is  prohibited,  as  in  that  of  1691 
between  England  and  Denmark  ; that  of  1762  between  Prussia 
and  Sweden  ; that  of  1801  between  Russia  and  England,  the 
latter  against  the  principle  of  the  armed  neutralities.  See 
Phillimore,  iii.,  §§  215-225,  Hautefeuille,  ii.,  pp.  53-68,  Gess- 
ner, 266-277,  to  the  latter  of  whom  I am  indebted  for  much 
of  the  matter  of  this  paragraph,  and  Kent,  i.,  pp.  82-85.  The 
latter,  speaking  of  our  protests  against  the  rule,  thinks  that  if 
we  should  become  a great  power,  and  have  a maritime  enemy 
which  should  open  its  commerce  to  neutrals  at  the  outbreak 
of  war,  we  should  attach  more  Aveight  to  the  arguments  in 
favor  of  the  rule  of  1756  than  aa'o  haA^e  done.  It  is  to  be 
hoped  that,  b}’-  acceding  to  the  declaration  of  1856,  or  some 
other,  allowing  larger  liberties  of  trade,  we  shall  help  to  con- 
sign the  old  rule  to  oblivion. 

§ 202. 

The  word  blockade  properly  denotes  obstructing  the  pas- 
sage into  or  from  a place  on  either  element,  but  is 

-11  1-1  • Blockade. 

more  especially  applied  to  naval  forces  preventing 
communication  by  Avater.  Unlike  siege  it  implies  no  intention 
to  get  possession  of  the  blockaded  place.  With  blockades  by 
land  or  ordinary  sieges  neutrals  have  usually  little  to  do. 

A blockade  is  not  confined  to  a seaport,  but  may  Inwe  effect 
on  a roadstead  or  portion  of  a coast,  or  the  month  of 
a riv.er.  But  if  the  river  is  a patliAA^ay  to  interior  cun' be 
neutral  territories,  the  passage  on  the  stream  of  A’es- 
sels  destined  for  neutral  soil  cannot  be  impeded.  It  has  been 
asserted,  that  no  place  could  be  put  under  blockade,  unless 


852 


OF  THE  EELATIONS  BETWEEN 


§ 202. 


There 

Mliy  is  a 
breach  of 
blockailc 
unlawful. 

to  aid 


it  were  fortified;  but  the  law  of  nations  knows  no  such  lim- 
itation.^ 

is  a ejeneral  agreement  that  it  is  unlawful  for  a neu- 
tral  vessel  knowingly  to  attempt  to  break  a block- 
ade, Avhether  by  issuing  from  or  entering  the  block- 
aded place.^  Such  an  act,  especially  of  ingress,  tends 
one  of  tlie  belligerents  in  the  most  direct  manner 
against  the  designs  of  the  other,  and  is  therefore  a great  de- 
parture from  the  line  of  neutrality.  And  a similar  act  on 
land  would  involve  the  loss  of  the  most  innocent  articles  in- 
tended for  a besieged  town.  ]\I.  Ortolan  places  the  obligation 
to  respect  a blockade  on  the  ground  that  there  is  an  actual 
substitution  of  sovereignty,  that  is,  that  one  belligerent  has 
possession  by  occupancy  of  the  waters  of  the  other.  But  this 
is  a formal  way  of  defending  the  right  of  blockade,  and  may 
be  found  fault  Avith,  perhaps,  for  the  reason  that  sovereignty 
over  Avater  along  a coast  is  merely  an  incident  to  soA^ereignty 
on  the  adjoining  land,  AAdiich  the  blockader  has  not  yet  ac- 
quii’ed.  The  true  ground  of  the  right  is  simply  this,  that  the 
belligerent  has  a right  to  carry  on  a siege  ; and  that  his  act 
of  commencing  such  a siege  places  neutrals  under  an  obliga- 
tion not  to  interfere  Avith  his  plans.  If  the  sea  Avere  a com- 
mou  jiatliAvay  to  the  very  coast  this  right  Avould  still  subsist. 

Blockades  may  be  considered  in  I'egard  to  their  objective 
validity,  to  the  evidence  Avhich  the  neutral  ought  to  have  of 
the  fact,  or  their  subjective  validity,  to  the  conduct  Avhich  con- 
stitutes a breach  of  blockade  and  its  penalties,  and  to  the  his- 
tory of  attempts  to  stretch  the  notion  of  blockade  beyond  the 
limits  prescribed  by  international  laAV. 

A valid  or  laAvful  blockade  requires  the  actual  presence  of  a 
sufficient  force  of  the  enemy’s  A-essels  before  a cer- 
vaiiablocui  tain  place  on  the  coast.  By  presence  is  intended 
general  presence,  or  presence  so  far  as  the  elements 

1 By  Lucchesi-Piilli,  p.  180  of  tlie  Frencli  translation  of  the  Italian  work, 
cited  1)3'  Ortolan,  ii.,  299. 

2 A neutral  ship,  overtaken  while  in  ])ort  b}'  a blockade,  is  generally  allowed, 
if  loaded  and  ready  to  sail,  to  go  out  with  her  cargo,  or  if  not  loaded,  to  go  out  in 
ballast. 


§ 202.  BELLIGERENTS  AND  NEUTRALS.  353 

do  not  interfere,  so  that  the  dispersion  for  a time  of  the  block- 
ading squadron  by  a storm  is  not  held  to  amount  to  its  being 
broken  up.  For  this  theie  must  be  abandonment  of  the  un- 
dertaking. What  a sufficient  force  is,  cannot  be  determined 
with  logical  rigor.  It  may  be  said  to  be  such  a force  as  will 
involve  a vessel  attempting  to  pass  the  line  of  blockade  in 
considerable  danger  of  being  taken. 

Treaties  have  sometimes  determined  the  amount  of  force 
necessary  to  make  a blockade  valid.  Thus,  a treaty  of  1742 
between  France  and  Denmark  declares  tliat  the  entry  of  a 
port  to  be  blockaded  must  be  closed  by  at  least  two  vessels, 
or  by  a battery  of  cannons  placed  on  the  coast,  in  such  sort 
that  vessels  cannot  get  in  without  manifest  danger.  A treaty 
of  1753  between  Holland,  and  the  Two  Sicilies  requires  the 
presence  of  at  least  six  vessels  of  war,  at  the  distance  of  a 
little  more  than  cannon-shot  from  the  place,  or  the  existence 
of  batteries  raised  on  the  coast,  such  that  entrance  cannot  be 
effected  without  passing  under  the  besieger’s  guns.  A treaty 
of  1818  between  Russia  and  Denmark  repeats  in  substance 
the  provisions  of  the  first  named  treaty. 

It  results  from  this,  that  all  paper  or  cabinet  blockades, 
whether  declarations  of  an  inteiitipn  to  blockade  a or 
])lace  Avithout  sending  an  adequate  force  thither,  or  t’loXiLs 
the  mere  formality  of  pronouncing  a tract  of  coast 
under  blockade,  are  an  undue  stretch  of  belligerent  right,  and 
of*  no  validity  whatever.  Such  grievous  offenses  against  the 
rights  of  neutrals  have  come,  it  is  to  be  hoped,  to  a perpetual 
end,  since  the  nations  Avhich  offended  most  signally  in  this  re- 
spect Avere  parties  to  the  declaration  accompanjdng  the  peace 
of  Paris  (April  16,  1856),  that  “ blockades  in  order  to  be 
binding,  must  be  effectual,  that  is  to  say,  maintained  by  a 
force  sufficient  in  reality  to  prevent  access  to  the  coast  of  the 
enemy.”  (§  190.) 

A question  arises  here  in  regard  to  the  jneaning  of  the 
Avords  (in  the  original  of  the  declaration)  effect  fs"  and 
“ une  force  snffisante  pour  interdire  reelment  Vaccesf  etc. 
Dr.  Lushington  remarked  that  the  maintenance  of  a blockade 

23 


354 


OF  THE  RELATIONS  BETWEEN 


I 202. 


must  always  be  a question  of  degree,  — of  the  degree  of  dan- 
ger of  ships  going  into  or  leaving  a blockaded  port.  No 
force  could  bar  the  entrance  to  an  absolute  certainty ; vessels 
may  get  in  or  get  out  during  the  night  or  fogs  or  violent  winds, 
or  occasional  absence  ; it  is  most  difficult  to  judge  from  num- 
bers alone.  And  he  adds  that  in  no  case  a blockade  was  held 
to  be  void  Avhen  the  blockading  force  was  on  or  near  the  place 
of  entry  or  exit.  This  opinion  was  given  before  the  declara- 
tion of  1 856.  Should  “ effective  ” have  any  more  stringent 
meaning  now.  Probably  all  would  concur  in  the  opinion  that 
the  constant  presence  of  a squadron  except  when  gales  ren- 
dered its  position  dangerous,  constant  danger  of  attempts  to 
make  an  unlawful  entrance  or  exit,  and  such  a nearness  of 
blockading  vessels  to  one  another  as  Avould  render  the  capture 
or  destruction  of  vessels  seeking  to  escape  from  a port  highly 
probable  in  the  judgment  of  the  commanding  officer,  are 
some  of  the  safest  criteria.^  The  opinion,  then,  as  to  the  ef- 
fectiveness of  a blockade  has  not  much  changed  since  1856. 


of  the  exis- 
tence of  a 
blockade. 


§ 203. 

As  a blockade  arises  from  some  positive  act  and  not  from  a 
2 Evidence  nici’e  intention,  as  it  is  a tempoi'ary,  and,  it  may  be, 
an  often-repeated  measure,  and  as  a neutral  is,  in 
general,  innocent  in  endeavoring  to  enter  any  port 
in  his  friend’s  territory,  it  is  manifest  that  in  order  to  become 
guilty,  he  must  have  had  the  means  of  obtaining  due  notice 
of  the  new  state  of  things  which  a blockade  has  occasioned. 

The  best  notice  is,  when  a vessel,  approaching  a poit,  or 
What  i.sduc  attempting  to  enter  it,  is  warned  off  by  a ship  per- 
notice?  taining  to  the  blockading  squadron.  In  many  special 
treaties  this  is  required.  In  that  of  1794,  between  Great 
Britain  and  the  United  States,  it  is  provided,  that  whereas 
vessels  frequently  “ sail  for  a port  or  place  belonging  to  an 
enemy  without  knowing  that  the  same  is  either  besieged, 
blockaded,  or  invested,  it  is  agreed  that  every  vessel  so  cir- 
cumstanced may  be  turned  away  from  such  port  or  place; 

^ Coinjj.  Twiss,  Law  of  Nations  in  War,  ed.  2.,  199. 


§ 203. 


BELLIGEKENTS  AND  NEUTRALS. 


355 


but  she  shall  not  be  detained,  nor  her  cargo,  if  not  contra- 
band, be  confiscated,  unless,  after  notice,  she  shall  again  at- 
tempt to  enter.”  Similar  stipulations  exist  in  treaties  between 
France  and  tlie  governments  of  Spanish  America.^ 

Justice  to  neutrals  requires  that  their  ships  should  not  be 
subject  to  the  risk  and  delays  of  a voyage  to  a port,  Avhere 
they  may  be  debarred  admission.  The  universal  practice,  is, 
therefore,  to  communicate  the  news  of  a blockade  to  neutral 
governments,  upon  whom  lies  the  I’esponsibility  of  making  it 
known  to  those  who  are  engaged  in  commerce.  And  if  such 
notice  be  given,  similar  notice  must  be  given  of  the  discontin- 
uance of  a blockade,  as  far  as  possible.  For  a wrong  is  done  to 
neutrals,  if  they  are  left  to  find  out  as  they  can  that  a block- 
ade is  terminated,  since  a long  time  may  elapse  before  it  will 
be  considered  safe  to  return  to  the  old  channel  of  commerce. 

There  is  a difference  of  practice  in  regard  to  the  amount  of 
notification  which  neutrals  may  claim.  The  French  hold,  for 
the  most  part,  that  both  a notice  from  the  government  of  the 
belligerent,  and  notice  from  a blockading  vessel,  at  or  near  the 
port,  are  necessary,  so  that  a vessel  will  not  incur  guilt  by 
coming  to  a port  in  order  to  ascertain  whether  a blockade, 
made  known  in  the  diplomatic  way,  is  still  kept  up.  The 
English  authorities  make  two  kinds  of  blockade,  one  a block- 
ade de  facto^  which  begins  and  ends  with  the  fact,  and  which 
will  involve  no  vessel  attempting  to  enter  a harbor  in  guilt, 
unless  previously  warned  off ; and  the  other  a blockade,  by 
notification,  accompanied  by  the  fact.  In  the  latter  case,  the 
presumption  is  that  the  blockade  continues  until  notice  to 
the  contrary  is  given  by  the  blockading  government.  Hence 
ignorance  of  the  existence  of  the  blockade  cannot  ordinarily 
be  plead  as  an  excuse  for  visiting  the  blockaded  port,  but  the 
voyage  itself  is  evidence  of  an  intention  to  do  an  unlawful  act. 
This  seems  to  be  quite  reasonable  : notice  to  the  neutral  state 
must  be  regarded  as  notice  to  all  shippers  who  are  its  subjects, 

' Wheaton,  Elements,  iv.,  3,  § 28,  p.  544;  Ortolan,  ii.,  305  sei;. — Treaties  of 
Trance  with  Brazil  (1828),  Bolivia  (1834),  Texas  (1839),  Venezuela  (1843),  Ecua- 
dor (1848),  and  others  more  recent,  contain  such  provisions. 


356 


OF  THE  RELATIONS  BETWEEN 


§ 203. 


and  if  tlie  rule  of  evidence  presses  hard  in  a few  cases,  the 
blockading  government  is  not  in  fault.  But  the  notice  must 
be  given  to  all  neutral  powers  in  oi'der  to  reach  their  subjects : 
general  notoriety,  as  by  news  travelling  from  one  country  to 
another,  is  not  sufficient  notice.^ 

Equity  requires  that  the  neutral  should  have  had  time  to 
receive  notice  of  a blockade.  Hence,  a ship  from  a distance, 
as  from  across  the  Atlantic,  may  attempt  to  enter  a port  actu- 
ally invested,  without  exposing  itself  to  penalties. 

It  cannot  be  said  in  justice,  that  a shrewd  suspicion  of  a 
blockade  is  enough  to  make  a vessel  guilty  in  sailing  for  a 
certain  port,  for  a known  or  a know  able  fact  must  precede 
guilt.  On  the  other  hand,  a fair  possibility  derived  from  tlie 
expectation  of  peace,  or  from  other  sources,  that  a blockade  is 
raised,  may  justify  a vessel  in  sailing  contingently  for  the  port 
in  question  with  the  intention  of  inquiring  at  the  proper  place 
into  the  fact. 

A blockade  ceases,  whenever  the  vessels  which  constitute  it 
3 When  is  a withdrawn,  whether  with  or  without  compulsion 
di'.sc^ra-^*^  from  the  enemy,  so  that  the  undertaking  is  for  the 
tinned?  time,  at  least,  abandoned.  If  the  vessels  return  after 
leaving  their  stations,  the  commencement  of  a new  blockade 
requires  the  same  notification  as  before.  Common  fame  in 
regar^to  the  breaking  up  of  a blockade  will  justify  a neutral 
in  sailing  for  the  blockaded  port,  although,  as  we  have  seen, 
it  is  not  sufficient  notice  to  him  : he  ought  to  have  more  evi- 
dence of  an  interference  with  the  normal  state  of  things  than 
he  needs  to  have  of  a return  to  it. 


§ 204. 

All  the  modern  French  writers  on  the  rights  of  neutrals 
upon  the  sea,  except  Hautefeuille,  hold  that  the  two 
kinds  of  notice,  tliat  from  the  government  and  tliat 
from  the  blockading  squadron,  are  necessary.  (Or- 
tolan, ii.,  305  et  seq.,  ed.  2;  Cauch}!,.  ii.,  421 ; Pistoye 
et  Duverdy,  i.,  372.)  Hautefeuille  regards  the  special  notili- 

1 Comp.  Wheaton,  iv.,  3,  § 28  ; Philliniore,  iii.,  335 ; Ortolan,  ii.,  301  et  seq. 


French  and 
Fngli.'ih 
practice  as 
to  notifica- 
tion contin- 
ued. 


§204. 


BELLIGERENTS  AND  NEUTRALS. 


357 


cation  as  essential  in  all  cases,  but  does  not  hold  the  diplomatic 
notification  to  be  necessary,  (ii.,  226,  ed.  2.)  The  French 
government  carries  out  the  same  views.  In  1838,  when  the 
jMexican  blockade  was  in  progress.  Count  Mole,  then  IMinister 
of  Foreign  Affairs,  wrote  to  his  colleague,  the  IMinister  of 
IMarine,  in  regard  to  the  conduct  of  the  commander  of  the 
fleet  in  the  Mexican  seas,  as  follows:  “M.  N.  confounds  here 
two  things  very  distinct,  the  diplomatic  notification  which 
ought  to  he  made  of  the  blockade  to  the  nentral  powers,  and 
the  information  which  the  commanders  of  the  forces,  employed 
to  maintain  it,  are  ahvays  bound  to  give  to  such  ships  as  pre- 
sent themselves  at  the  blockaded  places.  He  seems  to  think 
that  going  through  with  the  first  formality  dispenses  necessa- 
rily Avith  the  second,  which  Avould  thereafter  become  super- 
fluous. Such  a manner  of  proceeding  is  contrary  not  only  to 
the  ordinary  principles  of  maritime  laAV,  but  also  to  instruc- 
tions emanating  from  your  department,  and  to  the  communica- 
tions which  Avere  made  to  the  Government  of  the  United 
States  and  to  the  foreign  consuls  at  Vera  Cruz  at  the  time 
[of  commencing  the  blockade].  I Avill  not  recall  here  the 
reasons  ^vhy,  independently  of  the  official  and  diplomatic  no- 
tice of  a blockade,  every  ship  shoAving  itself  before  the  block- 
aded port  ought  to  receive  from  the  commander  of  the  block- 
ading squadron  the  Avarning,”  etc. 

In  all  the  treaties  of  commerce  made  betAveen  France  and 
the  South  American  republics  a clause  is  inserted  to  the  effect 
that  no  A'essel  of  commerce  belonging  to  citizens  of  either  of  the 
treaty-making  poAvers  shall  be  seized,  captured,  or  condemned, 
Avithout  having  received  a preA’ious  notice  of  the  existence  or 
continuation  of  the  blockade  from  the  blockading  forces  or 
from  some  A'essel  forming  a part  of  the  blockading  division  or 
squadron  ; and  particular  rules  folloAV  in  regard  to  the  vise  of 
the  commander  giA’ing  the  notice,  Avhich  is  to  be  put  upon  the 
ship’s  register,  and  for  AAdiich  the  captain  of  the  vessel  over- 
hauled and  A'isited  shall  give  a receipt.  (Ortolan,  u.  s.) 

The  same  rule  has  been  folloAved  by  Denmark,  and  gener- 
ally by  the  governments  of  continental  Europe.  It  appears  in 


358 


OF  THE  RELATIONS  BETWEEN 


§ 204. 


a large  number  of  treaties.  The  armed  neutrality  of  1800  pro- 
claimed it  as  one  of  their  principles  of  commercial  liberty,  that 
no  vessel  can  be  regarded  as  having  broken  blockade  until, 
after  being  informed  by  an  officer  of  the  blockading  vessel  con- 
cerning the  condition  of  the  port,  it  attempted  to  enter  by 
fraud  or  stratagem.  (Martens,  “ Rec.,”  vii.,  176.)  The  weight 
of  opinion,  also,  on  the  continent  is  upon  the  same  side. 
(Comp.  Gessner,  u.  s.,  179-192.) 

In  Jay’s  treaty  with  England  (1794),  and  in  a number  of 
treaties  with  the  South  American  States,  the  United  States 
have  adopted  the  provisions  given  in  the  text.  But  the  words 
“ so  circumstanced  ” seem  to  show  tliat  the  provision  applies 
only  to  cases  wlnu-e  there  is  ignorance  of  the  blockade  of  a par- 
ticular port.  It  cannot  therefore  be  cited  as  agreeing  with 
French  practice,  for  which  purpose  Ortolan  (ii.,  308)  and 
Gessner  (p.  204)  use  it.  Nor  did  Mr.  Lincoln,  perhaps,  mean 
anything  else  in  his  proclamation  of  blockade,  where  he  says, 
in  quite  general  terms,  Avhich  would  seem  to  announce  a rule 
not  confined  to  the  beginning  of  the  Avar,  that  a v’essel  ap- 
proaching or  attempting  to  leave  any  of  the  blockaded  ports 
“Avill  be  duly  Avarued  by  the  commander  of  one  of  the  block- 
ading A'essels,  Avho  Avill  endorse  on  her  register  the  fact  and 
date  of  such  Avaruiug,”  after  Avhich,  on  trying  to  do  the  foi'bid- 
den  act,  she  Avill  be  captured,  and  sent  into  some  port  for  ad- 
judication. At  least  the  government  did  not  adhere  to  the 
rule  through  the  Avar,  and  as  early  as  in  July,  1861,  a vessel 
ignorant  of  the  Avar  Avas  captured  before  attempting  to  enter  a 
port.  In  fact,  the  doctrine  of  continuous  voyages  could  hardly 
have  been  applied,  if  such  AAmrniug  had  been  thought  neces- 

sary- 

The  continental  doctrine  is  compelled  to  break  down  in  re- 
gard to  those  blockades  in  distant  parts  of  the  Avorld,  Avhich  a 
commander  of  a squadron,  as  the  representative  of  his  goA'ern- 
ment,  is  alloAA^ed  to  impose.  They  can  occur  before  any  diplo- 
matic notification,  and  a vessel  thus  AA^arned  is  still  a laAvful 
prize. 

This  doctrine  appears  to  the  Avriter  to  he  destitute  of  a 


§ 20-t. 


BELLIGERENTS  AND  NEUTRALS. 


359 


rational  foundation.  Why  should  two  notifications  he  judged 
necessary?  One  can  see  the  need  of  a “diplomatic”  notifica- 
tion. It  saves  the  neutral  merchant  from  the  risk  and  loss  of 
an  adventure  which  the  war  will  prevent  him  from  carrying 
out  according  to  his  intentions.  And  the  notification  at  the 
port  is  necessary  as  a supplemental  warning,  when  there  has 
not  been  time  for  the  ships  of  neutrals  on  the  sea  or  in  distant 
ports  to  become  aware  of  the  existence  of  a blockade.  But 
apart  from  this  exceptional  case,  and  from  the  case  that  the 
blockade  has  been  raised,  to  give  notice  to  a vessel  coming 
to  a port  to  break  a blockade  is  like  giving  notice  to  a burglar 
trying  to  break  into  a house.  It  is  a highly  criminal  jiroceed- 
ing  to  try  to  break  a blockade.  It  is  becoming  a party  to  a 
war.  A person  trying  to  steal  into  an  invested  town  Avith  pro- 
visions Avould  be  summarily  dealt  Avith.  Why  this  great  com- 
passion for  neutrals  engaged  in  a AAwong  traffic  ? Especially 
does  such  trade  require  to  be  the  more  seA'erely  treated,  as 
long  as  neutral  nations  themselves  throAv  the  gates  open,  and 
make  no  movement  to  hinder  this  kind  of  commerce.  For  our 
part,  AA'hile  Ave  could  wish  to  have  all  private  ships  and  goods 
engaged  in  innocent  trade  exempt  from  seizure,  we  Avould  Avish 
to  have  illicit  trade  subject  to  the  heavier  penalties,  eA'en  to 
the  punishment  of  the  crew,  to  have  the  ship  liable  in  cases  of 
ordinary  contraband,  and  to  have  neiitral  states  stop  such  ad- 
A'entures  AATthin  their  OAvn  ports. 

One  Avord  in  regard  to  the  place  of  the  commencement  aiid 
the  duration  of  the  liability  to  be  seized  for  breaches  of  block- 
ade. The  continental  doctrine  necessarily  iiiA'olves  this  rule, 
— that  no  ship  is  liable  until  it  reaches  the  place  Avliere  the 
blockading  ships  are  stationed.  The  punishable  fact  is  not 
the  sailing  across  a tract  of  sea  Avith  an  intention  to  do  an  evil 
deed,  but  t\\Q  fact  that  the  vessel  tries  to  enter  the  blockaded 
harbor.  It  is  evident  that  this  formal  rule  increases  tlie 
temptation  to  engage  in  such  enterprises,  Avhile  the  other  rule 
may  bear  hard,  as  far  as  evidence  is  concerned,  upon  neutral 
traders.  On  the  other  hand  the  continental  rule,  if  Ave  mis- 
take not,  is  that  the  vessel  on  her  return  voyage  is  not  liable, 


360 


OF  THE  RELATIONS  BETWEEN 


§ 204. 


although  it  is  admitted  that  a vessel  breaking  blockade  and 
running  out  again  may  be  chased  to  her  own  coasts  or  to  any 
other  neutral  port.  Or,  in  other  words,  the  fact  here  too  must 
be  gin  at  the  blockaded  port.  It  is  not  easy  to  see  a sufficient 
reason  for  this  rule  on  the  score  of  the  principle. 


§ 205. 

A vessel  violates  the  law  of  blockade  by  some  positive  act 
^ p ^ of  entering  or  quitting,  or  by  showing  a clear  and 
for  breach  specdy  intention  to  enter  a blockaded  port.  A re- 

of  blockade.  i ’''c-i 

mote  intention  entertained  at  the  outset  of  the  voy- 
age, for  instance,  might  be  abandoned,  and  the  seizure  of  such 
a vessel  on  the  high  seas  would  be  unlawful.  It  must  be  at 
or  near  the  harbor,  or  its  intention  must  be  manifest,  in  order 
to  cause  it  to  be  liable  to  penalty.  The  penalty  is  confisca- 
tion, and  it  falls  first  on  the  ship  as  the  immediate  agent  in  the 
crime.  The  cargo  shares  the  guilt,  unless  the  owners  can  re- 
move it  by  direct  evidence.  The  presumption  is  that  they 
knew  the  destination  of  the  vessel,  for  the  voyage  was  under- 
taken on  account  of  the  freight.  If  ship  and  cargo  are  owned 
by  the  same  persons,  the  cargo  is  confiscated  of  course. 

The  penalty  for  a breach  of  blockade  is  held  to  continue 
upon  a vessel  until  the  end  of  her  return  voyage,  and 
liability  to  to  liavo  ceasod,  if  she  were  captured  after  the  actual 
penalty.  cliscoiitiniiance  of  the  blockade.  The  reasons  for  the 
former  rule  may  be  that  the  voyage  out  and  back  is  fairly 
looked  on  as  one  transaction,  the  return  freight  being  the  mo- 
tive in  part  for  the  act,  and  that  time  ought  to  be  allowed 
to  the  blockading  vessels  to  pursue  and  cajiture  the  offender. 
The  reason  for  the  latter  is,  that  the  occasion  for  inllicting  the 
penalty  ceased  with  the  blockade. 

Besides  this  penalty  on  cargo  and  vessel,  the  older  text- 
writers  teach  that  punishment  may  be  visited  upon  the  direct 
authors  of  a breach  of  blockade. ^ Even  De  Martens  (§  320) 
declares  that  corporal  pains,  by  the  positive  law  of  nations  and 
by  natural  justice,  may  be  meted  out  to  those  who  are  guilty 

1 Grotius,  iii.,  1,  § 5,  3;  Bynkersh.,  Queest.  J.  P.,  i.,  11 ; Vattel,  iii.,  7,  § 117. 


§ 206. 


BELLIGERENTS  AND  NEUTRALS. 


361 


of  sucla  breach.  But  the  custom  of  nations,  if  it  ever  allowed 
of  such  severities,  has  long  ceased  to  sanction  them. 

§ 206. 

The  natural  inclination  of  belligerents  to  stretch  their  rights 
at  sea  at  the  expense  of  neutrals,  appears  in  attempts  5 Attempts 
to  enlarge  the  extent  of  blockades  over  a tract  of  [he  docuine 
coast  without  a sufficient  force ; and  at  no  time  so  blockade, 

much  as  at  the  end  of  the  eighteenth  and  beginning  of  the 

nineteenth  century.  In  the  war  of  France  and  Spain  with 
Great  Britain  during  the  American  revolution,  those  nations 
extended  the  notion  of  blockade  unduly,^  which  led  to  the 

declaration  of  Russia  in  1780,  — afterwards  made  one  of  the 

principles  of  both  the  armed  neutralities,  — that  the  blockade 
of  a port  can  exist  only,  “ where,  through  the  arrangements  of 
the  power  which  attacks  a port  by  means  of  vessels  stationed 
there  and  sufficiently  near,  there  is  an  evident  danger  in  en- 
tering.” 

The  far  more  important  aggressions  on  neutral  rights  be- 
tween the  year  1806  and  1812,  are  too  closely  connected  with 
the  affairs  of  our  own  country  to  be  passed  over  in  silence. 
These  aggressions,  under  the  continental  sj^stem,  as  it  was 
called,  may  be  traced  back  to  measures  adopted  towards  the 
close  of  the  last  century,  the  object  of  which  Avas  to  cripple 
the  commerce  of  England.  Thus,  in  1796,  the  ports  of  the 
ecclesiastical  states  and  Genoa,  and  in  1801,  those  of  Naples 
and  Portugal  Avere  closed  to  British  vessels,  by  special  treaties 
with  the  French  republic. 

In  1806,  Prussia,  then  in  vassalage  to  Napoleon,  but  at 
peace  Avith  England,  and  at  the  time  in  temporary  Prussian  de- 
possession of  Hanover,  issued  a decree  announcing 
that  the  ports  and  rivers  of  the  North  Sea  Avere  closed  to  Eng- 
lish shipping,  as  they  had  been  during  the  French  occupation 
of  Hanover.  By  A\'ay  of  retaliation,  the  British  goA"ernment 
gave  notice  to  neutral  poAvers,  that  the  coast  from  the  Elbe  to 
Brest  AA'as  placed  in  a state  of  blockade,  of  Avhicli  coast  the 

1 Kliiber,  § 303. 


362 


OF  THE  KELATIONS  BETWEEN 


§206 


Berlin 

decree. 


jjortion  from  Ostend  to  the  Seine  was  to  be  considererl  as  under 
the  most  I'igorous  blorkade,  Avhile  the  remainder  was  optm  to 
neutral  A’essels  not  laden  Avitli  enemies’  goods,  nor  Avith  goods 
contraband  of  AA-ar,  nor  guilty  of  a previous  violation  of  block- 
ade, nor  sent  from  the  ports  of  enemies  of  the  British  govern- 
ment. 

This  measure  led  to  the  Berlin  decree  of  Bonaparte,  bearing 
the  date  of  November  21,  1806.  In  this  decree,  is- 
sued from  the  capital  of  subjugated  Prussia,  after 
reciting  the  infractions  of  international  hiAV  Avith  Avhich  Eng- 
land AAOis  chargeable,  the  Emperor  dechu’es  the  British  islands 
to  be  under  blockade,  and  all  commerce  Avith  them  to  be  for- 
bidden, English  manufactures  to  be  laAvful  prize,  and  vessels 
from  ports  of  England  or  her  colonies  to  be  excluded  from  all 
ports,  and  to  be  liable  to  confiscation,  if  they  should  contra- 
A'ene  the  edict  by  false  papers. 

The  Berlin  decree  “rendered  eA'ery  neutral  A^essel  going 
First  Orders  Euglisli  ports  Avitli  cargoes  of  English  nierchan- 

iti  Council,  pj.  Qf  Eiiglisli  oi’igin,  lawfully  seizable  by  French 

armed  vessels.”  ^ The  British  government  Avas  not  sloAV  in  its 
retaliation.  By  an  Order  in  Council,  dated  January  7,  1807,  it 
Avas  declared  “ that  no  A^essel  should  be  permitted  to  sail  from 
one  port  to  another,  both  of  Avhich  ports  should  belong  to  or 
be  in  the  possession  of  France  or  her  allies,  or  should  be  so 
far  under  their  control,  that  British  vessels  might  not  trade 
thereat.”  And  by  a second  Order  in  Council,  dated  November 
11,  1807,  it  Avas  declared  that,  as  the  previous  order 
ordensin  had  uot  iuduced  the  enemy  to  alter  his  measures,  all 
places  of  France,  her  allies  and  her  colonies,  as  also 
of  states  at  peace  Avith  Great  Britain  and  yet  excluding  her 
fl;)g,  should  be  under  the  same  restrictions  as  to  commerce,  as 
if  they  Avere  blockaded  by  British  forces.  All  commerce  in 
the  productions  of  such  states  w^as  pronounced  illegal,  and  all 
vessels  so  engaged,  Avith  their  cargoes,  if  taken,  Avere  to  be  ad- 
judged hiAvful  prize.  But  neutrals  might  trade  Avith  the  colo- 


1 Words  of  M.  Champagny,  French  minister  of  foreign  relations,  October  7, 
1807. 


§2oe. 


BELLIGEEENTS  AND  NEUTRALS. 


863 


Tlies,  or  even  with  the  ports  of  states  thus  under  the  ban,  for 
goods  to  be  consumed  by  themselves,  provided  they  either 
started  from  or  entered  into  a British  port,  or  sailed  directly 
from  the  enemies’  colonies  to  a port  of  their  own  state.  JNIore- 
over,  as  certain  neutrals  had  obtained  from  the  enemy  “ certif- 
icates of  origin,”  so  called,  to  the  effect  that  the  cargoes  of 
their  vessels  were  not  of  British  maniifacture,  it  was  ordered 
that  vessels,  carrying  such  certificates,  together  with  the  part 
of  the  cargo  covereil  by  them,  should  he  confiscated,  as  the 
prize  of  the  captor.  A supplement  to  this  order  declared  that 
ships  sold  by  the  enemy  to  a neutral  would  be  deemed  illegally 
sold,  and  be  considered  lawful  prize,  Avhile  another  supplement 
regulated  the  manner  in  Avhich  neutrals  must  carry  on  their 
commerce,  and  prescribed  licenses,  Avithout  AA’hich  trade  in  cer- 
tain articles  aa'ouIcI  be  held  nnlaAA’ful. 

Against  these  orders  the  French  Emperor  fulminated  the 
Milan  decree  of  December  17,  1807,  declaring  that 
evei’Y  vessel  AAhich  submitted  to  be  searched  by  an 
English  cruiser,  or  to  make  a A’oyage  to  England,  or  to  pay  a 
tax  to  the  English  government,  had  lost  the  right  to  its  OAvn 
flag,  and  had  become  English  property ; that  such  Amssels  fall- 
ing into  the  hands  of  French  cruisers,  or  entering  French 
ports,  Avould  be  regarded  as  laAvful  prize ; and  that  every  ves- 
sel holding  communication  Avith  Great  Britain  or  with  her 
colonies,  if  taken,  Avould  be  condemned. 

These  arbitrary  extensions  of  the  right  of  Avar,  by  Avhich 
neutral  rights  AAmre  sacrificed  to  the  retaliation  of  the 

^ iVl6£lFUrGS  of 

belligerents,  Avere  calculated  to  grind  to  pieces  the  the  united 
few  remaining  neutral  powers.  The  United  States, 
being  the  principal  state  in  this  condition,  made  strong  com- 
plaints, the  disregard  of  Avhich  led  to  more  positiAm  measures. 
In  December,  1807,  an  embargo  Avas  laid  on  commercial  ves- 
sels in  the  ports  of  the  United  States,  and  in  ]\Iarch,  1809, 
was  passed  an  act  prohibiting  intercourse  Avith  France  and 
England,  until  their  restrictions  on  neutral  commerce  should 
be  remoAmd;  Avhich  act  AAms  to  continue  in  force  towards  either 
country,  until  it  should  revoke  its  obnoxious  decrees. 


364 


OF  THE  RELATIONS  BETWEEN 


§ 206. 


Tliis  led  to  some  relaxation  on  tlie  part  of  Great  Britain. 
British  Or-  Order  in  council  of  April  20,  1809,  the  ports 

ooundi  of  Holland,  France,  and  Northern  Italy,  were  to  be 
April,  1309.  plficed  under  blockade,  while  the.  I'est  of  the  coast, 
embraced  under  previous  orders,  was  opened  to  neutral  com- 
merce. Napoleon,  as  yet,  however,  relaxed  his  system  of 
measures  in  no  degree.  In  1810,  he  ordered  all  British  manu- 
factures found  in  France  to  be  burnt,  and  the  same  regulation 
extended  to  the  states  under  French  supremacy.  Tliis  would 
seem  to  show  that  the  prohibition  of  trade  with  England  was 
not  rigidly  enforced,  wdiich  was  owing  in  part  to  the  deficiency 
of  the  French  naval  force,  and  in  part  to  the  great  demand  for 
British  manufactures  and  the  venality  of  revenue  officers.  On 
the  other  hand,  the  English,  being  masters  of  the  sen,  were 
able  to  make  their  orders  in  council  good  against  neutral  com- 
merce. It  would  seem  that  there  was  an  understanding  be- 
tween the  French  government  and  our  own,  that  the  Berlin 
decree  should  not  be  put  into  force  against  our  vessels. 

Snell  continued  to  be  the  state  of  things  until  1812,  when 
the  French  government  annulled  its  obnoxious  decrees,  and 
the  British,  upon  being  made  acquainted  with  the  fact,  re- 
scinded their  retaliatory  orders,  as  far  as  concerned  American 
goods  on  American  vessels.  This  took  jolace  June  the  23d, — 
not  in  time  to  prevent  the  war  with  Great  Britain,  which  the 
United  States  had  already  begun  in  the  same  month,  and  a 
principal  pretext  for  which  was  these  same  Orders  in  Council. 


Doctrine  of 
continuous 
Voyages. 


§ 207. 

The  doctrine  of  continued  or  continuous  voyages,  -which  Sir 
W.  Scott,  afterwards  Lord  Stowell,  originated,  de- 
serves to  be  noticed,  and  may  be  noticed  here,  al- 
though it  first  arose  in  reference  to  colonial  trade 
with  another  country,  carried  on  by  neutrals.  As  the  English 
courts  condemned  such  trade,  the  neutrals  in  the  first  part  of 
this  century,  especially  shippers  and  captains  belonging  to  the 
United  States,  tried  to  evade  the  rule  by  stojiping  at  a neutral 
port  and  seeming  to  pay  duties,  and  then,  perhaps,  after  land- 


§ 207. 


BELLIGERENTS  AND  NEUTRALS. 


365 


insr  and  reladinsc  tlie  carg-oes,  carried  them  to  the  inother-coun- 
try  of  the  colony.  The  motive  for  this  was,  that  if  the  goods 
in  question  were  hand  fide  imported  from  the  neutral  country, 
the  transaction  was  a regular  one.  The  courts  held,  that  if  an 
original  intention  could  be  proved  of  carrying  the  goods  from 
the  colony  to  the  mother-country,  the  proceedings  in  the  neu- 
tral territory,  even  if  they  amounted  to  landing  goods  and  pay- 
ing duties,  could  not  overcome  the  evidence  of  such  intention ; 
the  voyage  was  really  a continued  one  artfully  interi  upted,  and 
the  penalties  of  law  had  to  take  effect.  Evidence,  therefore, 
of  original  intention  and  destination  was  the  turning-point  in 
such  cases.  (See,  especially,  the  case  of  the  Polly^  llobinson’s 
Rep.,  ii.,  361-372,  the  cases  of  the  Maria,  and  of  the  William, 
ibid.,  V.,  365-372,  and  385-406,  and  the  cases  there  men- 
tioned.) 

The  principle  of  continuous  voyages  will  apply  when  cases 
of  contraband,  attempt  to  break  blockade,  etc.,  come  up  before 
courts  which  accept  this  English  doctrine.  In  our  late  war 
many  British  vessels  went  to  Nassau,  and  either  landed  their 
cargoes  destined  for  Confederate  ports  there,  to  be  carried  for- 
ward in  some  other  vessel,  or  stopped  at  that  port  as  a con- 
venient place  for  a new  start  towards  Charleston  or  some  other 
harbor.  If  an  intention  to  enter  a blockaded  port  can  be 
shown,  the  vessel  and  the  cargo,  as  is  said  in  the  text,  are  sub- 
ject to  capture  according  to  English  and  American  doctrine 
from  the  time  of  setting  sail.  Now  the  doctrine  of  continuous 
voyages  has  been  so  applied  by  our  Supreme  Court,  that  it 
matters  not  if  the  vessel  stops  at  a neutral  port,  or  unlades  its 
cargo  and  another  vessel  conveys  it  onward,  or  if  formalities  of 
consignment  to  a person  at  the  neutral  port,  or  the  payment 
even  of  duties  are  used  to  cover  the  transaction : provided 
destination  to  the  blockaded  port,  or,  in  the  case  of  contra- 
band, to  the  hostile  country,  can  be  established,  the  ship  on 
any  part  of  its  voyage,  and  the  cargo  before  and  after  being 
landed,  are  held  to  be  liable  to  confiscation.  Or,  if  again  the 
master  of  the  vessel  was  ordered  to  stop  at  the  neutral  port  to 
ascertain  what  the  danger  was  of  continuing  the  voyage  to  the 


366 


OF  THE  KELATIONS  BETWEEN 


§ 207.. 


blockaded  harbor,  still  guilt  rested  on  the  parties  to  the  trans- 
action as  before.  All  this  seems  a natural  extension  of  the 
English  principle  of  continned  voyages,  as  at  first  given  out  ; 
but  there  is  danger  that  courts  will  infer  intention  on  insuffi- 
cient grounds.  A still  bolder  extension  Avas  given  to  it  by  our 
courts  in  the  case  of  vessels  and  goods  bound  to  the  Rio  Grande, 
the  goods  being  then  carried  ujd  by  lighters  to  IMatamoras.  We 
could  not  prohibit  neutrals  from  sending  goods  to  the  Mexican 
side  of  that  river  ; but  if  it  could  be  made  to  appear  that  the 
goods  were  destined  for  the  side  belonging  to  the  United  States, 
that  was  held  to  be  sufficient  ground  for  condemnation  of  them  ; 
although,  in  order  to  reach  their  destination,  they  would  need 
overland  carriage  over  neutral  territory.  (See  Prof.  Bernard’s 
“ British  Neutrality,”  307-317,  and  comp.  Dana’s  note  231  on 
Wheaton,  § 508.) 

Dr.  Ludwig  Gessner,  author  of  the  work  before  cited,  “Droits 
des  Neutres  sur  IMer,”  gives  a certain  assent  to  the  principle  of 
continuous  voyages.  In  remarks  on  the  condemnation  of  the 
Spri)}gholc  by  our  courts,  he  coincides  with  the  opinion,  “that 
a capture  can  be  justified,  even  Avhen  the  immediate  destination 
is  a neutral  port,  if  it  can  be  proved  beyond  doubt  that  the 
contraband  of  war  is  destined  foi-  the  enemy.”  But  if  proof 
beyond  doubt  is  required,  his  limitation  is  not  a A'ery  practical 
one.  (Opinion  of  L.  Gessner,  etc.,  London,  1869,  from  the 
“ Norddeutsche  Allg.  Zeitg.”  of  December  29  and  30,  1868.) 

§ 208. 

In  order  to  enforce  the  right  of  preventing  neutrals  from 
The  ri'-htof  conveyiug  hostile  or  contraband  goods  on  their  ships, 
search.  from  breaking  blockade,  it  is  necessary  that  the 

bellio’e rents  should  be  inAmsted  Avith  the  rio-ht  of  search  or  visit. 

D O 

By  this  is  intended  the  right  to  stop  a neutral  A^essel  on  the 
high  seas,  to  go  on  board  of  her,  to  examine  her  paper’s,  aird, 
it  may  be,  even  her  cargo,  — in  short,  to  ascertain  by  personal 
inspection  that  she  is  not  engaged  in  the  infraction  of  any  of 
the  rights  above  enumerated. 

The  right  of  search  is  by  its  nature  confined  within  narroAV 


§ 208. 


BELLIGERENTS  AND  NEUTRALS. 


367 


limits,  for  it  is  merelj"  a method  of  ascertaining  that  certain 
specific  violations  of  ri^lit  are  not  taking  place,  and 

^ 1 -1  n -1  • 1 • • 1 L-  i'  1 Confined 

would  otherwise  be  a great  violation,  itselt,  of  the  nuhinnar- 

^ u • limits. 

freedom  of  passage  on  the  common  pathway  oi  nations. 

In  the  first  2)Iace,  it  is  only  a tear  right.  The  single  exception 
to  this  is  spoken  of  in  § 212,  namely,  that  a nation  may  law- 
fully send  a cruiser  in  pursuit  of  a vessel  which  has  left  its 
port  under  suspicion  of  having  committed  a fraud  upon  its 
revenue  laws,  or  some  other  crime.  This  is  merely  the  con- 
tinuation of  a pursuit  beyond  the  limits  of  maritime  jurisdic- 
tion with  the  examination  conducted  outside  of  these  bounds, 
v/hicli,  but  for  the  flight  of  the  ship,  might  have  been  con- 
ducted within.  In  the  second  jolace.,  it  is  applicable  to  merchant 
ships  alone.  Vessels  of  war,  pertaining  to  the  neutral,  are  ex- 
empt from  its  exercise,  both  because  they  are  not  wont  to  con- 
vey goods,  and  because  they  are,  as  a part  of  the  power  of  the 
state,  entitled  to  confidence  and  respect.  If  a neutral  state 
allowed  or  required  its  armed  vessels  to  engage  in  an  unlawful 
trade,  the  remedy  would  have  to  be  applied  to  the  state  itself, 
d'o  all  this  Ave  must  add  that  a vessel  in  ignorance  of  the  pub- 
lic character  of  another,  for  iirstance,  suspecting  it  to  be  a 
piratical  ship,  may  without  guilt  require  it  to  lie  to,  but  the 
moment  the  mistake  is  discovered,  all  proceedings  must  cease. 
(§§  213,220.)  In  the  third  ]gl ace.,  the  right  of  search  must  be 
exerted  in  such  a way  as  to  attain  its  object,  and  nothing  more. 
Any  injury  done  to  the  neutral  vessel  or  to  its  cargo,  any  op- 
pressive or  insulting  conduct  during  tlie  search,  may  be  good 
ground  for  a suit  in  the’  court  to  which  the  cruiser  is  amenable, 
or  even  for  interference  on  the  part  of  the  neutral  state  to 
which  the  vessel  belongs.^  In  the  fourth  place.,  it  may  be  an 

1 Hence  it  seems  fairly  to  follow  llmt  r.entral  goods  not  contrabjind,  on  bo.ard 
.T.  merchant  ship  belonging  to  one  bclligcrenr,  me  not  confiscable,  if  .said  .slop  re- 
sists srarcli,  or  tries  to  escape  frotn  llie  other  lielligercnt’s  crni-cr,  wliile  if  tlie 
ship  were  nentrtil  and  did  the  same  the.se  gooils  would  be  liab'e  to  ca])nire.  So 
hold  I.ord  Stowell,  Wheaton,  Ortolan,  Ctilvo  ii.,  021.  The  belligerent  violates 
no  duty  by  resisting  or  fieeitig  from  si'arch,  bar  the  tietitrtil  ship  is  bottiid  not  to 
intike  resistance  or  try  to  esca|  c.  The  I'ni’ed  S ates  ('our  s,  howewr,  hold  that 
if  :i  hostile  capttiin  resists  search,  ail  goods  on  board  are  coi.liscable.  9 Cranch, 
338 ; 3 Wheaton,  409.  — T.  S. 


368 


OF  THE  EELATIONS  BETWEEN 


§ 203. 


act  of  self-defense  in  extreme  cases  (see  § 214),  or  what  is 
equivalent  to  a war-right  ag’aiiist  unlawful  expeditions  by  par- 
ties not  constituting  a state. 

It  is  plain,  from  the  existence  of  the  right  of  search,  that  an 
obligation  lies  on  the  neutral  ship  to  make  no  resist- 

Duty  of  pub-  ^ ^ ^ 

mittiiig  to  .a  auce.  The  neutral  is  in  a different  relation  to  the 
belligerents  than  the  vessels  of  either  of  them  to  the 
other.  These  can  resist,  can  run  away,  unless  their  word  is 
pledged,  hut  he  cannot.  Annoying  as  the  exercise  of  this  right 
may  be,  it  must  be  submitted  to,  as  even  innocent  persons  are 
bound  to  siibmit  to  a search-warrant  for  the  sake  of  general 
justice.  Any  resistance,  therefore,  or  attempt  to  escape,  or  to 
get  free  from  the  search  cr  its  consequences,  by  force,  if  they 
do  not  bring  on  the  destruction  of  the  vessel  at  the  time,  may 
procure  its  confiscation,  even  though  it  had  been  engaged  in  a 
traffic  entirely  innocent. 

This  delicate  right  is  often  regulated  by  treaties  prescribing 
Treaties  of-  distaiicc  at  which  the  visiting  vessel  shall  remain 
thciTgluof*  fi’om  the  vessel  to  be  visited,  which  is  in  general  not 
?eajcii.  ^Yithin  cannon-shot ; the  number  of  persons  to  under- 
take  the  examination,  as  that  only  two  besides  the  oarsmen 
shall  pass  to  the  merchant  vessel ; and  the  amount  of  evidence, 
which  shall  satisfy,  — as  that  the  ship  itself  shall  not  be 
searched,  if  the  proper  papers  aie  on  board,  unless  there  is 
good  ground  for  suspicion  that  these  papers  do  not  give  a true 
account  of  the  cargo,  ownership,  or  destination. 

If  a vessel  that  is  captured  escapes  with  or  without  resist- 
ance into  neutral  territory,  the  neutral  is  not  bound 

Ca?c  of  the  . 

Emily  St.  to  deliver  it  up,  and  the  case  is  not  one  which  his 
courts  can  notice.  The  case  is  like  that  of  a slave 
or  a prisoner  of  war  recovering  his  liberty  and  escaping  into 
his  sovereign’s  or  other  neutral  territory.  (Compare  case  of 
Creole.,  §§  74, 134,  p.  224,  and  § 151.)  The  case  of  the  Emily 
St.  Pierre,  captui-ed  in  1862,  near  our  coast,  illustrates  this 
point.  Some  of  the  crew,  being  left  on  board,  got  possession 
of  the  vessel  and  carried  her  into  Liverpool.  Our  government 
claimed  her  on  the  ground  that  the  rescue  was  fraudulent  and 


§ 208. 


BELLIGERENTS  AND  NEUTRALS. 


369 


fin  act  of  Tiolence  towards  a lawful  cruiser.  It  is  remarkable 
tliat  a .similar  case  ooeurred  in  1800,  only  that  Gi  eat  Ilritain 
made  the  claim  and  our  government  rebutted  it  on  grounds 
which  the  Bi-itish  Government  urged  in  1832.  See  Prof.  I’er- 
nard’s  “ British  Neutrality”  (pp.  325-329),  who  says,  “there  ean 
be  no  doubt  that  the  American  Government  was  right  in  1800 
and  wrong  in  1862,  and  the  English  Government  Avrong  in 
1800  and  right  in  1882.  The  enforcement  of  blockades  is  left 
. . . . by  the  law  of  nations  to  the  belligerent  alone.  They 
are  enforced  by  the  exercise  of  the  belligerent  right  of  capture  ; 
and  this  right  is  the  Aveapon  Avhich  international  laAV  places  in 
his  hands  for  that  expre.ss  purpose.  Capture  is  an  act  of  force, 
AAdiich  has  to  be  sustained  by  force  until  the  property  in  the 
vessel  has  been  changed  by  a sentence  of  condemnation.  If 
she  escape  meauAAdiile  from  the  captor's  hands,  it  is  not  for  the 
neutral  to  restore  her  to  him.  Resistance  or  a rescue  is  ...  . 
a distinct  offense,  clraAving  after  it  a di.stinct  and  appropriate 
penalty,  — confiscation.  But  liere,  again,  it  is  for  the  bellig- 
erent to  inflict  the  penalty,  and  it  is  not  the  business  of  the 
neutral  to  help  him  to  do  this,  either  by  recovering  his  prize 
for  liim  or  by  treating  the  act  as  a crime.”  Other  like  cases 
AA’ere  (1)  that  of  tlie  British  vessel  J"ere,  recaptured  and  taken 
into  GeorgetoAvn,  S.  C.  (1795).  The  district  court  lu  Id  that 
the  captors  AA'ere  entitled  to  the  riglit  of  asylum.  (2.)  That 
of  the  United  States  vessel  Lone,  Avhieh  had  broken  a blockade 
of  Metamoras  by  a French  blockading  squadron,  Avas  taken  by 
one  of  the  A'essels,  and  then  rescued  by  her  captain,  Avho  car- 
ried her  into  NeAV  Orleans.  To  the  French  Government’s  de- 
mand that  she  should  be  delivered  up  on  account  of  the  breach 
of  blockade  and  the  unbiAAriul  rescue,  it  was  replied  that  the 
United  States  had  not  been  called  upon  to  restore  property 
rescued  on  account  of  a captor’s  failure  to  make  the  capture 
sure.  It  AA-as  his  duty  to  put  an  adequate  force  on  his  vessel, 
and  the  omission  Avas  at  his  peril.  (Comp.  TavIss,  “Law  of  Na/- 
tions  in  War,”  p.  496.) 


S70 


OF  THE  RELATIONS  BETWEEN 


§ 209. 


§ 209. 

• A search  at  sea  is  exceedingly  annojdng,  not  only  because 
^ it  may  affect  an  innocent  party,  and  may  cause  ex- 

right  of  pensive  delays,  but  also  beeanse  tliose  who  are  con- 

convoy  ? ^ * 

cerned  in  it  are  often  insolent  and  violent,  ^\’hat 
can  be  expected  of  a master  of  a privateer,  or  of  an  inferior 
officer  in  the  navy,  urged  perhaps  by  strong  suspicion  of  the 
iieiitrars  guilt,  but  that  he  Avill  do  his  office  in  the  most  offen- 
sive and  irritating  manner?  To  prevent  these  annoyames, 
governments  have  sometiines  ari’anged  rvitli  one  another,  that 
the  presence  of  a public  vessel,  or  convoy,  among  a fleet  of 
merchantmen,  shall  be  evidence  that  the  latter  are  engaged  in 
a lawful  trade.  But  neutrals  have  gone  farther  than  this,  they 
have  claimed,  without  previous  treaty,  that  a national  ship 
convoying  their  trading  vessels  shall  be  a sufficient  guaranty 
that  no  unlawful  traffic  is  on  foot.  The  beginnings  of  such  a 
iiistorioai ii-  proceeded  from  the  Dutch  in  the  middle  of  the 

lustrations,  seventeenth  century,  but  the  first  earnest  and  con- 
certed movement  on  the  part  of  neutrals  for  this  end,  was  made 
near  the  end  of  the  last  century,  at  which  time,  also,  the  prin- 
ciiial  maritime  powers,  excepting  Great  Britain,  made  treaties 
establishing  the  right  of  convoy  between  themselves.  From 
this  starting  point,  neutrals  went  on  to  claim  that  this  ought 
to  be  regarded  as  a right  forming  a part  of  the  laAV  of  nations, 
and  to  employ  force,  when  Great  Britain  exercised,  Avithout 
respect  to  the  convoy,  the  right  of  search  on  the  old  plan.  In 
1798,  the  convoy  of  a fleet  of  Swedish  merchantmen,  having, 
in  conformity  with  instructions,  taken  a British  officer  out  of 
one  of  the  vessels  of  commerce,  the  whole  fleet  Avas  captured, 
and  Sir  William  Scott,  in  the  British  admiralty  court,  decided 
that  the  act  of  violence  subjected  all  the  vessels  to  condemna- 
tion.i  Not  long  after  this,  in  1800,  a Danish  frigate  in  the 
Mediterranean,  acting  as  a convoy,  fired  on  the  boats  sent  from 
British  frigates  to  examine  the  merchant  vessels  under  its  pro- 
tection. The  act  Avas  repeated  in  July  of  the  same  year  by 
1 Case  of  the  Maria,  1 Robinson’s  Rep.,  340-379. 


§ 209. 


BELLIGERENTS  AND  NEUTRALS. 


371 


another  frigate  of  the  same  nation,  then  neutral  but  ill-affected 
towards  England.  The  frigate,  named  the  /'Vc/yu,  witli  six 
trading  vessels  under  its  care,  met  six  llriiish  ships  of  wai’, 
when  the  refusal  of  a demand  to  search  the  menhantmen  led 
to  acts  of  hostility,  which  resulted  in  the  currender  of  the 
Danish  national  vessel.  In  consequence,  however,  of  negotia- 
tions between  the  two  governments,  the  ship  Avas  released,  and 
it  Avas  agreed,  on  the  part  of  the  Danes,  that  the  right  of  con- 
voy should  not  be  exercised,  until  some  arrangement  should 
be  made  touching  this  point. 

These  collisions  Avere  one  of  the  reasons  for  the  foi’mation  of 
the  second  armed  'neutrality  of  1800.  In  that  leaa'ue 

^ Second 

the  contracting  poAvers  (Russia,  Sweden,  Denmark,  ai-mcaneu- 
and  Prussia),  among  other  stipulations,  agreed  that 
search  should  be  prevented  by  a declaration  of  officers  in 
charge  of  a coin'oy  to  the  effect  that  the  ships  under  his  charge 
had  no  contraband  goods  on  board. 

The  armed  neutrality  aa'us  succeeded  by  retaliatory  embar- 
goes, and  on  the  2d  of  April,  1801,  the  battle  of  Copenhagen 
prostrated  the  poAver  of  Denmark.  Conventions  Avere  soon 
afterAAmrds  effected  between  Great  Britain  and  the  northern 
powers  — i.  e.,  Russia,  Sweden,  and  Denmark,  Avithont  Prussia 
— by  Avhich  it  AA’as  agreed  that  goods  on  neuti’al  A’essels,  ex- 
cept contraband  of  Avmr  and  enemy's  property,  should  be  free, 
and  in  Avhich  the  folloAving  arrangements  regarding  convoy 
received  the  assent  of  the  parties  : (1.)  That  the  right  of  visit, 
exercised  by  belligerents  on  A-essels  of  the  parties  to  the  armed 
neirtrality,  shall  be  confined  to  public  A’es.sels  of  AAmr,  and  never 
committed  to  priA'ateers.  (2.)  That  trading  vessels  of  any  of 
the  contractants,  nnder  cOiiAmy,  shall  lodge  with  the  com- 
mander of  the  convoying  A'essel  their  passports  and  certificates 
or  sea-letters,  drawn  np  according  to  a certain  form.  (3.)  That 
AA'hen  such  vessel  of  convoy  and  a belligereijt  vessel  meet,  they 
shall  ordinarily  be  beyond  the  distance  of  cannon-shot  from 
one  another,  and  that  the  belligerent  commander  shall  send  a 
boat  ti)  the  neutral  vessel,  whereupon  proofs  shall  be  exhibited 
both  that  the  vessel  of  convoy  has  a right  to  act  in  that  ca- 


372 


OF  TliE  RELATIONS  BETWEEN 


§ 209. 


pacity,  and  that  the  visiting  vessel  in  trntli  belongs  to  the  pub- 
lic navy.  (4.)  This  done,  theoe  shall  be  no  visit,  if  the  papers 
aie  according  to  rule.  (Otherwise,  the  neutral  commander,  on 
request  of  the  other,  shall  detain  the  merchantmen  for  visits, 
which  shall  be  made  in  the  presence  of  officers  selected  from 
tlie  two  shij93  of  war.  (5.)  If  the  commander  of  the  belligerent 
vessels  finds  that  there  is  reason  in  any  case  for  further  search, 
on  notice  being  given  of  this,  the  other  commander  shall  order 
an  officer  to  remain  on  board  the  vessel  so  detained,  and  assist 
in  examining  into  the  cause  of  the  detention.  Such  vessel  is 
to  be  taken  to  the  nearest  convenient  port  belonging  to  the 
belligerent,  where  the  ulterior  search  shall  be  conducted  with 
all  possible  despatch.^ 

The  right  of  convoy,  although  not  yet  a part  of  international 
law,  apparently  approaches  such  a destiny,  as  it  is  now  received 
by  many  jurists,  and  engrafted  into  the  conventional  law  of 
almost  all  nations.  Whether,  as  some  put  it.  the  word  of  honor 
of  the  commander  of  the  convoying  vessel  ought  to  be  sufficient 
proof,  may  fairly  be  doubted.  The  Fiench  orders  to  their 
naval  officers,  issued  in  1854,  for  the  war  with  Russia,  deserve 
notice  for  contemplating  this  point.  “You  shall  not,”  say 
they,  “ visit  vessels  which  are  under  the  convoy  of  an  allied 
or  neutral  ship  of  war,  and  shall  confine  yourselves  to  calling 
upon  the  commander  of  the  convoy  for  a list  of  the  ships 
placed  under  his  protection,  together  with  his  written  declara- 
tion that  they  do  not  belong  to  the  enemy,  and  are  not  engaged 
in  any  illicit  commerce.  If,  however,  you  have  occasion  to 
suspect  that  the  commander  of  the  convoy  has  been  imposed 
upon  [que  la  religion  du  commandant  du  convoi  a dte  sur- 
prise], you  must  communicate  your  suspicions  to  that  officer, 
who  should  proceed  alone  to  visit  the  suspected  vessel.” 

§ 210. 

On  the  ground  of  mere  justice  this  right  cannot  be  defended. 
It  is  said  that  tlie  commander  of  the  convoying  vessel  represents 
the  state,  and  the  state  guarantees  tliat  nothing  illicit  has 
1 See  Append,  ii.,  under  1800. 


§ 211. 


BELLIGERENTS  AND  NEUTRALS. 


373 


been  put  on  board  the  merchantmen.  But  how  can  the  bel- 
lilierent  know  whetljer  a careful  search  was  made  be- 

^ .Tustire  of 

fore  sailing,  whether  the  custom-house  did  not  lend  tuc  right  of 

^ , • convoy. 

itself  to  deception?  It  is  only  by  comity  that  na- 
tional vessels  are  allowed  their  important  privileges  ; bow,  ex- 
ce[)t  by  a positive  and  general  agreement,  can  those  privileges 
be  still  further  extended,  so  as  to  limit  the  belligerent  right  of 
search  ? On  the  ground  of  interiiiitional  good-will,  however, 
the  right  is  cap:ible  of  defense,  and,  so  far  as  we  can  see,  ex- 
cept where  the  protected  fleet  is  far  separated  by  a storm 
from  its  guardian,  — in  which  case,  we  suppose  the  ordinary 
right  of  search  must  be  resumed,  — can  be  exercised  in  the  in- 
terests of  belligerents  as  well  as  neutrals.  The  United  States 
have  some  eleven  treaties,  in  which  provision  is  made  for  con- 
voy : namely,  eight  with  states  of  the  American  continent,  and 
others  with  Morocco,  Tunis,  and  Italy  (1787,  1797,  1871). 
That  with  Morocco  in  1787,  expired  in  1837,  and  provisions 
in  early  treaties  with  France  and  with  the  Netherlands  seem 
to  be  obsolete. 

§ 211. 

A novel  case  in  international  law  arose,  when,  in  1810,  Den- 
mark, being  at  war  with  England,  issued  an  ordinance,  Neutrals 
declaring  to  be  lawful  prize  such  neutral  vessels  as  Jlgerent''^ 
had  either  in  the  Baltic  or  the  Atlantic  made  use  of 
English  convoy.  A number  of  vessels  from  the  United  States, 
bound  to  Rus.sia,  had  placed  themselves  under  English  pro- 
tection, and  on  their  return,  were  seized  and  condemned  in 
Denmark,  not  for  resistance  to  search,  nor  for  the  character  of 
their  traffic,  but  for  violating  an  ordinance  to  them  unknown. 
The  arguments  of  our  negotiator  setting  forth  the  injustice  of 
this  piroceeding,  are  given  at  large  in  Dr.  Wheaton’s  “ Ele- 
ments ” (iv.,  3,  §§  32,  556-566),  and  Mr.  Manning  has  expressed 
a brief  op^inion  on  the  contrary  side,  in  favor  of  the  Danish 
rule,  (iii.,  11,  pr.  369.)  The  ships  apipoear  to  have  been  en- 
gaged in  an  innocent  trade,  and  to  liave  dreaded  the  treatment 
they  might  meet  witli  from  French  cruisers,  but  not  to  have 
sought  to  avoid  the  allies  of  the  French,  the  Danes.  The  case 


374 


OF  THE  RELATIONS  BETWEEN 


§ 211. 


Avas  a peculiarly  hard  one,  when  they  Arere  condemned  ; and 
this  Denmark  admitted  in  1830,  by  paying  an  indemnity  to 
our  government  for  the  sufferers.  As  for  the  principle  on 
Avhich  the  case  is  to  be  decided,  it  seems  to  run  betAveen  mak- 
ing use  of  the  enemy’s  flag,  and  putting  one's  goods  on  board 
an  armed  enemy's  A'essel.  The  former  is  done  to  enjoy  certain 
priA'ileges,  offered  by  a party  at  Avar,  Avhich  could  not  other- 
Avise  be  secured  ; the  latter  may  be  done  Avithout  complicity 
Avith  the  intentions  or  conduct  of  the  captain  of  the  armed 
ship,  or  may  be  done  Avith  the  design  of  having  tAA'o  strings  to 
one’s  bo\A%  — of  availing  one’s  self  of  force  or  not,  as  circum- 
stances shall  require.  Upon  the  Avhole,  the  intention  to  screen 
the  vessels  behind  the  enemy’s  guns  is  so  obvious  that  the  act 
must  be  pronounced  to  be  a decided  departure  from  the  line 
of  ueutralitAq  and  one  Avhich  may  justly  entail  confiscation  on 
the  offending  party 

It  is  admitted  by  all,  that  Avithin  the  AAmters  Avhich  may  be 
Search  dur-  culUd  the  territory  of  nations,  as  Avithin  a marine 
ixcc'^uTe  rov-  Uague,  or  in  creeks  and  bays,  the  vessel  of  a friendly 
enueiaws.  state  may  be  boardecl  and  searched  on  suspicion  of 
being  engaged  in  unlaAvful  commerce,  or  of  violating  the  laAvs 
concerning  revenue.  But  further  than  this,  on  account  of  the 
ease  Avith  Avhich  a criminal  may  escape  beyond  the  proper  sea- 
line  of  a countiy,  it  is  alloAvable  to  chase  such  a vessel  into 
the  high  sea,  and  then  execute  the  arrest  and  search  Avhich 
flight  had  prevented  before.  Furthermore,  suspicion  of  of- 
fenses against  the  laAvs  taking  their  commencement  in  the 
neighboring  Avaters  beyond  the  sea-line,  Avill  authorize  the  de- 
tention and  examination  of  the  supposed  criminal.  An  Eng- 
lish statute  “prohibits  foreign  goods  to  be  transhipped  Avithin 
four  leagues  of  the  coast  Avithout  payment  of  duties;  and 
the  act  of  Congiess  of  i\Iai’ch  20,  1799,  contained  tlie  same 
proliibition  ; and  tlie  exercise  of  jurisdiction  to  that  dis- 
tance, for  the  safety  and  protection  of  the  revenue  hiAA's,  AA'as 
declared  by  the  Supreme  Court  in  Church  v.  Hubbard  (2 
Cranch,  187),  to  be  conformable  to  the  laAvs  and  usages  of  na- 
tions.” (Kent,  i.,  31,  Lect.  ii.) 


§ 214. 


BELLIGERENTS  AND  NEUTRALS. 


375 


§ 213. 

That  kind  of  right  of  search,  -which  -we  have  just  consid- 
ereil,  is  an  accident  of  sovereignt}’  in  a state  of  peace, 
but  is  confined  in  its  exercise  to  a smali  range  of  suspicion  of 
the  sea.  The  right  of  search  on  suspicion  of  piracy, 
however,  is  a wai-right,  and  may  be  exercised  by  public  ves- 
sels anywhere  except  in  the  waters  of  another  state,  because 
pirates  are  enemies  of  the  human  race,  at  -war  with  all  man- 
kiml.  The  Supreme  Court  of  the  United  States  has  decided 
that  ships  of  war  acting  under  the  authority  of  government 
to  ai’rest  pirates  and  other  public  offenders,  may  “ approach 
any  ve,ssels  descried  at  sea  for  the  purpose  of  ascertaining  their 
real  chaiacter.”  ^ And  thus  even  public  vessels,  suspected  of 
piracy,  may  be  called  to  account  upon  the  ocean.  Whether 
the  detention  of  a vessel  unjustly  suspected  of  piracy  may 
not  be  a ground  for  a claim  of  damages  may  be  made  a ques- 
tion . 

§214. 

It  may  happen,  as  in  a rebellion,  that  a hostile  expedition 
mav  be  surreptitiousl-c  fitted  out  in  a friendl-v  conn- 

4 4 » Senroh  of 

try,  without  the  fault  of  the  officials,  and  that  a ves-  vessels  hav- 
sel  is  on  its  way  to  land  ti’oops  and  arms  for  aid  in  intent,  and 
a civil  war.  In  such  a case  self-defense  authorizes 
search,  and  possibly  seizure,  whether  such  a vessel  is  found  on 
the  high  seas  or  within  the  waters  of  the  injured  state. 

Of  this  the  case  of  the  Virginiiis,  which  is  in  some  re.spects 
like  that  of  the  Caroline,  is  perhaps  the  most  notice-  oaseof  the 
able  illustration  in  recent  times.  The  Virginius,  car- 
ryiiig  the  flag  of  the  United  States,  and  supposed  for  some 
time  to  be  a regularly  registered  vessel  of  the  United  States, 
was  captured  by  a Spanish  w-ar-steamer  on  the  high  sea,  while 
endeavoring  to  I’each  the  neutral  waters  of  the  island  of  Ja- 
maica,-having  been  foiled  in  the  attempt  to  land  a party  of 
insurrectionists  on  the  Cuban  coast.  The  capture  occurred  in 
the  night  of  October  31,  1873,  but  the  bulletin  officially  an- 

> Case  of  the  Marianna  Flora,  1 1 AVheaton,  43. 


376 


OF  THE  RELATIONS  BETWEEN 


§ 214. 


nouiifiiig  it  Avas  not  published  at  HaA’ana  until  NoA^emher  5. 
A couvt  A\as  assembled  for  the  trial  of  the  persons  taken  on 
the  A'essel,  one  hundred  and  fiftv-fiA’e  in  number,  of  Avliom  four 
AA'ere  executed  on  the  4th  of  NoA-ember,  thirty-seA’en  on  the  7th, 
and  sixteen  on  the  8th  ; and  the  remainder,  one  liundred  and 
two  in  number,  AA^ere  deliA^ered  on  board  a United  States 
stenmer  December  18.  ddiere  Avero  nine  executed  avIio  belonged 
to  the  United  States,  and  a larger  number  of  Britisli  subjects. 
Tlie  summary  and  informal  process,  the  cruel  execution  of 
persons  belonging  to  tlie  creAV,  even  of  mariners  and  cabin- 
boys,  met  Avith  the  just  indignation  of  the'  Avorld ; but  in 
addition  to  this,  unless  the  Virginias  can  be  shown  to  be  a 
piratical  vessel,  the  mode  of  trial  Avas  a violation  of  Article  7 
of  our  treaty  of  1795  Avith  Spain,  Avhich  secures  a regular  trial, 
the  use  of  solicitors,  agents,  etc.,  and  their  free  access  to  tlie 
subjects  or  citizens  of  tlie  one  party  arrested  for  offenses  com- 
mitted within  the  jurisdiction  of  the  other. 

The  Government  of  the  United  States,  supjAOsing  that  our 
rights  on  the  sea  had  been  violated,  as  Avell  as  that  persons 
illegally  cajitured  had  been  executed  cruelly  and  against 
treaty,  demanded  reparation.  As  the  result  of  negotiations, 
on  the  29th  of  November,  Spain  stipulated  to  restore  the  Ufr- 
ginius  and  the  survivors,  and  to  salute  the  flag  of  the  United 
States  on  the  25th  of  December  folloAving.  If,  hoAvever,  be- 
fore that  date  Spain  should  satisfactorily  prove  that  the  Vir- 
ginias AA’as  not  entitled  to  carry  the  flag  of  the  United  States, 
the  salute  should  be  dispensed  Avith,  and  only  a disclaimer  of 
intent  of  indignity  to  the  flag  should  be  required.  Further- 
more, the  United  States  engaged  on  the  same  condition,  to 
adopt  legal  proceedings,  etc.,  against  the  ve.ssel,  and  the  per- 
sons Avho  might  have  violated  the  laAvs  in  relation  to  the  ves- 
sel. 

It  Avas  afterwards  proved  that  the  Virginias  aauis  not  legally 
a vessel  of  the  United  States.  The  real  owners  from  the  first 
Avere  Spaniards.  The  oath  of  the  American  in  Avhose  name 
she  Avas  registered  Avas  false.  So  says  the  Attorney- general  in 
a letter  to  the  Secretary  of  State,  dated  December  17,  1873, 


§214. 


BELLIGERENTS  AND  NEUTRALS. 


37T 


•Kvlio  adds  that,  in  his  opinion,  she  had  no  right  as  against  the 
United  States,  to  carry  the  American  flag,  because  she  liad 
not  been  registered  according  to  law.  He  adds,  “ Spaii>,  no 
doubt,  has  a right  to  capture  a vessel  with  an  Ainerican  reg- 
ister, and  carrying  the  American  flag,  found  in  her  own 
watei’s,  assisting  or  endeavoring  to  assist  tlie  insurrection  in 
Cuba ; but  she  has  no  right  to  capture  such  a vessel  on  the 
high  seas,  upon  an  apprehension  that,  in  violation  of  the  neu- 
trality ('!■  navigation  laws  of  the  United  States,  she  was  on 
her  way  to  assist  said  rebellion.” 

The  reasoning  and  opinion  of  the  Attorney-general  are  ex- 
amined by  Mr.  R.  H.  Dana,  the  editor  of  “ Wheaton,”  in  a 
Boston  journal,  of  January  6, 1874.  In  brief,  he  takes’ the  un- 
assailable position  that  actual  ownership  by  a person  belong- 
ing to  a state,  places  a ship  on  the  high  seas  under  the  ju- 
risdiction of  that  state.  The  Virginius,  owned  really  by 
Spaniards,  was  really  under  Spanish  jurisdiction;  and  “the 
register  of  a foreign  nation  is  not,  and  by  the  law  of  nations 
is  not  recognized  as  being,  a national  voucher  and  guaranty 
of  national  character  to  all  the  world.”  “ Nations  having 
cause  to  arrest  a vessel,  would  go  behind  such  a document  to 
ascertain  the  jnrisdietional  fact  which  gives  character  to  the 
document,  and  not  the  document  to  the  fact.”  “ Even  a gen- 
uine pass|)ort,  which  is  an  assertion  of  national  character,  is 
not  conclusive  between  nations  on  a question  of  right  to  ar- 
rest.” And  if  the  Attorney-general  thinks  that  Spain  has  no 
jurisdiction  to  inquire  into  violations  of  our  laws,  that  the 
question,  whether  or  not  the  register  was  fraudulently  ob- 
tained, w'as  a matter  of  our  law  and  for  our  decision,  it  may 
be  replied  that,  granting  this  to  be  true,  the  fact  does  not 
touch  the  question  of  jurisdiction,  which  depends  on  owner- 
ship. All  that  can  fairly  be  said  is,  that  while  the  nation  of 
the  owners  has  a right  to  arrest,  the  ostensible  ownership  ap- 
pearing on  the  legister  fraudulently  obtained,  would  suggest 
delay  and  sequestration  of  the  vessel  until  the  facts  could  be 
established.  We  add  that  the  flag  is  no  protection  without  a 
right  to  use  it,  and  that  every  nation  — for  purposes  of  juris- 


378 


OF  THE  RELATIONS  BETWEEN 


§214. 


diction  over  vessels  of  its  subjects  at  sea,  as  veil  as  for  other 
reasons  — lias  a right  to  decide  by  its  ships  of  war  whether  its 
own  vessels  are  not  Aveaiino-  a foreign  flag. 

But  the  Spanish  captain  who  took  the  Virginim  supposed  it 
to  be  a veritable  Ameiic-an  vessel,  making  an  attempt  to  land 
men  and  instruments  of  Avar,  in  order  to  assist  the  insurrection 
in  Cuba.  What  Avas  his  duty  in  the  premises?  It  Avas  to  de- 
fend the  coasts  of  Cuba,  to  the  best  of  his  ability,  against  a a'cs- 
sel  Avhich  Avas  knoAvn  to  be  under  the  control  of  the  insurgents, 
for  AAdiich  he  had  been  on  the  lookout,  and  against  Avhich  the 
only  eft'ectual  security  Avas  capture  on  the  high  seas.  Of  course 
such  self-defense  on  the  part  of  Spain  involved  a risk,  like  that 
Avhich  Avas  involved  in  the  case  of  the  Caroline,  Avhere,  as  Avas 
mentioned  in  the  text,  ]\Ir.  Webster  admitted  that  self-defense 
Avas  in  extreme  cases  justifiable,  although  it  might  lie  be5’ond 
the  ordinary  course  of  international  hiAV.  The  Avriter  of  this 
work  defended  the  proceedings  of  the  Spanish  vessel  on  this 
ground  in  some  remarks  made  at  the  time,  which  Avere  Avidely 
circulated  in  the  newspapers.  Some  time  afterAvards  an  emi- 
nent laAA^yer,  Mr.  George  T.  Curtis,  examined  the  subject  at 
large  in  “ The  Case  of  the  Virginms,  considered  Avith  Reference 
to  the  LaAV  of  Self-defense,”  and  justifies  the  capture  on  the 
same  ground.  We  quote  a few  AA'ords  : “ We  rest  the  seizure 
of  this  vessel  on  the  great  right  of  self-defense,  Avhich.  spring- 
ing from  the  law  of  nature,  is  as  thoioughly  incorporated  into 
the  hiAv  of  nations  as  any  right  can  be.  No  state  of  belliger- 
ency is  needful  to  bring  the  right  of  self-defense  into  operation. 
It  existed  at  all  times  — in  peace  as  Avell  as  in  AAair.  The  only 
questions  that  can  arise  about  it  relate  to  the  modes  and  places 
of  its  exercise.  In  regard  to  these  AA^e  have  onlj"  to  say  that 
there  is  no  greater  inconvenience  to  be  suffered  by  admitting 
that  this  right  may  be  exercised  on  the  ocean,  than  is  con- 
stantly suffered  by  neutrals  from  an  exercise  of  the  belligerent 
rights  of  nations  at  Avar.  In  fact  the  inconvenience  is  not 
nearly  so  great.” 

The  documents  may  be  found  in  Executive  Document  No. 
30,  Forty-third  Congress,  first  session,  accompanying  a mes- 
sage of  the  Rresident. 


§ 216. 


BELLIGERENTS  AND  NEUTKALS. 


379 


The  following  rules  of  international  law  are  illustrated  by 
the  case  of  the  Vh'ginius  : — 

1.  That  the  right  of  self-defense  authorizes  a nation  to  visit 
and  capture  a vessel  as  well  on  the  high  seas  as  in  its  own 
waters,  Avlien  there  is  reasonable  ground  to  believe  it  to  be 
engaged  in  a hostile  expedition  against  the  territory  of  such 
nation. 

2.  That  a nation’s  right  of  jurisdiction  on  the  high  seas  over 
vessels  owned  by  its  citizens  or  subjects,  authorizes  the  deten- 
tion and  capture  of  a vessel  found  on  the  high  seas,  which 
upon  reasonable  ground  is  believed  to  be  owned  by  its  citizens 
or  subjects,  and  to  be  engaged  in  violating  its  laws.  The  flag 
or  register  of  another  nation,  if  not  properly  belonging  to  a 
vessel,  does  not  render  its  detention  unlawful  by  the  cruiser  of 
a nation  to  Avhich  its  owners  belong.  As,  however,  the  regis- 
ter affords  primd  facie  evidence  of  nationality,  the  nation 
which  gave  the  register  by  mistake  must  be  tieated  witli  great 
care,  detention  on  grounds  proved  to  be  erroneous  must  be 
atoned  for,  and  the  question  of  ownership  would  naturally  be 
committed,  where  the  evidence  is  not  patent,  to  a third  party. 


215. 


Soarrh  of 
foreign  vcj?- 
seis  snrpcct- 
ed  of  being 
Fla  vers  un- 
authorized, 


As  the  slave-trade  has  not  hitherto  become  piracy  by  the 
laAv  of  nations,  but  only  by  the  municipal  and  conven- 
tional law  of  certain  nations  (§  140),  no  state  can 
authorize  its  cruisers  to  detain  and  visit  vessels  of 
other  states  on  suspicion  of  their  being  concerned  in 
this  traffic,  because  the  right  of  detention  and  visit  is  a right 
of  self-defense.  Every  state  mav,  to  carry  out  its  laws  and  the 
laws  of  humanity,  detain  and  search  its  own  vessels  in  peace 
also,  but  if,  in  so  doing,  mistakes  are  committed,  the  comman- 
der of  the  searching  vessel  is’  responsible,  and  damages  may  be 
demanded. 

§216. 


Such  right,  hoAvever,  of  reciprocal  detention  and  visitation 
upon  suspicion  of  being  engaged  in  the  slave-trade  has  been 
conceded  by  a considei’able  number  of  treaties  between  the 


880 


OF  THE  RELATIONS  BETWEEN 


§ 216. 


principal  powers  of  Europe.  Previous  to  the  downfall  of  Bona- 
butconcea-  P^H'te  there  had  been  a falling  off  in  the  traffic  in 
ties  bitwcou  slaves  ; for  Great  Britain  had  not  only  prohibited 
muLf  uf'"  citizens  from  the  traffic,  but  prevented  also 

liurope,  enemies  from  engaging  in  it  by  her  command 

of  tlie  seas;  it  had,  moreover,  long  been  forbidden  under  heavy 
penalties  by  the  United  States;  and  there  were  then  on  this 
side  of  the.  water  few  motives  for  engaging  in  so  dangerous  an 
employment.  At  the  peace,  although  the  sentiment  of  Eu- 
rope was  expressed  against  the  slave-trade,  the  nations  most 
interested  in  resuming  it,  France,  Spain,  and  Portugal,  refused 
to  give  it  up  at  once,  alleging  that  their  colonies  needed  to  be 
replenished  with  slave-laborers,  while  those  of  England  were 
fully  stocked.  The  first  concession  of  the  rigid  of  search  is 
to  be  found  in  the  treaty  between  Portugal  and 
mid  Portugal  England  made  July  28,  1817,  — which,  however,  re- 
lated only  to  the  trade  north  of  the  equator ; for  the 
slave-trade  of  Portugal  within  the  regions  of  Western  Africa, 
to  the  south  of  the  equator,  continued  long  after  this  to  be  car- 
ried on  with  great  vigor.  By  this  treaty,  ships  of  war  of  each 
of  the  nations  might  visit  merchant  vessels  of  both,  if  sus- 
pected of  having  slaves  on  board,  acquired  by  illicit  traffic. 
By  the  treaty  of  Madrid,  of  the  same  year,  Great  Britain  ob- 
tained from  Spain,  for  the  sum  of  four  hundred  thou- 
M.icirid,  sand  pounds,  the  immediate  abolition  of  the  trade 
north  of  the  equator,  its  entire  abolition  after  1820, 
and  the  concession  of  the  same  mutual  right  of  search  which 


the  treaty  with  Portugal  had  just  established.  The  precedent 
was  followed  by  a treaty  of  Great  Britain  with  the  Nether- 
lands, in  1818,  which  also  contemplated  the  establishment  of 
a mixed  commission  to  decide  upon  the  cases  of  ves- 
tiosi  in  1813,  sels  seized  on  suspicion  of  slave-trading.  Stipulations 
somewhat  similar  were  made  between  Sweden  and 
Great  Britain  in  1824. 

In  1831  and  1833,  conventions  between  France  and  Great 
Britain  included  one  more  power  in  arrangements  for  mutual 
search.  But  the  right  of  search  was  only  admissible  on  the 


§ 217. 


BELLIGERENTS  AND  NEUTRALS, 


381 


western  coast  of  Africa  from  Cape  Verde  (15°  north  lat.)  to 
the  tentli  degree  of  south  latitude,  and  to  the  thir-  conrcntions 
teenth  degree  of  west  longitude  from  the  meridian  of 
Paris,  and  also  around  Madagascar,  Cuba,  and  Porto  rritl' 
Rico,  as  well  as  on  the  coast  of  Brazil  to  the  distance 
into  the  sea  of  twenty  leagues.  It  was  agreed,  however,  that 
suspected  vessels,  escaping  beyond  this  range  of  twent}^  leagues, 
might  be  detained  and  visited  if  kept  in  sight.  As  to  steps 
subsequent  to  ca])ture,  no  mixed  commission  was  allowed,  but 
the  captured  vessel  was  to  be  tiled  in  the  country  to  whose 
jurisdiction  it  belonged,  and  by  its  courts. 

By  the  quintuple  treaty  of  December  20,  1841,  to  which 
Great  Britain,  Austria,  Prussia,  Russia,  and  France, 
were  parties,  all  these  powers,  excepting  the  latter,  ?roaty”of'' 
conceded  to  one  another  the  mutual  right  of  search 
within  very  wide  zones  of  ocean  between  Africa  and  America, 
and  on  the  eastern  side  of  Africa  across  the  Indian  Ocean. 
France,  however,  owing  to  ])02mlar  clamor,  and  the  dislike  en- 
tertained by  almost  the  entire  chamber  of  deputies  toward  the 
riMit  of  search,  withheld  her  ratification  and  adhered  to  her 
arrangements  of  1831  and  1833,  above  spoken  of,  until  the 
year  1845.  In  tiiat  year  she  witlidrew  her  consent  to  the  mu- 
tual right  of  search  altogether,  — as  the  terms  of  the  F,.a,iop,  in 
conventions  allowed  her  to  do, — but  stipulated  to  drafv’s"icr' 
cooperate  with  Great  Britain  in  suppressing  the  a°r'ii^u  of 
slave-trade  by  sending  a squadron  to  the  coast  of  Af- 
rica.  Each  power  engaged  at  first  to  keep  twenty-six  vessels 
on  the  coast  for  this  service,  but  the  number  on  the  part  of 
France  was  afterwards  to  be  reduced  to  one  half.  This  is  be- 
lieved to  be  the  existing  arrangement. 

§ 217. 

The  Treaty  of  Ghent,  which  terminated  the  war  between 
the  United  States  and  Great  Britain  on  the  24th  obligations 
of  December,  1814,  contains  the  following  article:  url'ia 
“ Whereas  the  traffic  in  slaves  is  irreconcilable  with 
the  principles  of  humanity  and  justice ; and  whereas 


382 


OF  THE  RELATIONS  BETWEEN 


§217. 


both  II  is  Britannic  Majesty  and  the  United  States  are  desirous 
of  continuing  their  efforts  to  iiromote  its  entire  abolitinn,  it  is 
hereby  agreed  tliat  both  the  conti'acting  parties  shall  use  their 
best  endeavors  to  accoinplisli  so  desirable  an  object."  Tlie  act 
pas.‘^cd  by  Congress  in  1818,  which  increased  the  penalties 
hanging  over  this  traffic  and  extended  their  :;pplication  ; that 
of  1810,  which  authoi  ized  the  sending  of  armed  vessels  to  the 
coast  of  Africa,  and  the  confiscation  of  slave-trading  ships 
belono'iu'i'  to  citizens  or  foreign  residents,  together  with  the 
ell'ects  on  board;  and  the  act  of  1820,  by  which  the  slave- 
trade,  wherever  carried  on.  was  declared  to  be  piracy  both  for 
all  persons  on  American  craft  so  employed,  and  for  American 
citizens  serving  on  board  vessels  of  any  nationality,  — these 
several  acts  show  that  the  United  States  were  sincerely  en- 
deavoring ‘to  accomplish  so  desirable  an  object  ” as  the  entire 
abolition  of  this  infamous  traffic. 

But  the  trade  continued,  notwithstanding  such  legislation, 
and  it  would  appear  that  vessels  and  crews  from  the  United 
States  were  concerned  in  it,  acting  in  the  interest  of  Cubans, 
but  especially  of  Portuguese  in  Brazil.  The  British  govern- 
ment, therefore,  from  time  to  time,  urged  on  that  of  the  United 
States  the  adoption  of  more  effectual  measures  to  comply  with 
the  stipulations  of  the  Treaty  of  Ghent.  In  particular  it 
urged  that  the  two  nations  should  concede  to  each  other  the 
light  of  search,  with  the  single  object  in  view  of  ascertaining 
whether  a suspected  vessel  was  really'  concerned  in  the  slave- 
trade.  To  this  the  United  States  uniformly  declined  giving 
their  assent.  The  right  of  search  was  an  odious  one  even  in 
war,  and  peculiarly  odious,  because  British  cruisers  had  exer- 
cised it  in  an  overbearing  and  ilh'gitimate  way,  when  the 
United  States  were  a neutral  nation.  It  would,  if  admitted, 
naturally  involve  a mixed  court  for  deciding  cases  of  captuie, 
which  court,  stationed  in  a foreign  country,  and  composed  of 
judges  not  all  of  them  amenable  to  our  laws,  did  not  afford  to 
native  citizens  brought  hefore  it  those  securities  which  are 
guaranteed  to  them  by  the  constitution. 

Meanwhile,  in  February,  1823,  by  a vote  of  one  hundred 


§ 217. 


BELLIGERENTS  AND  NEUTRALS. 


383 


and  tliirty-one  tn  nino,  tlio  House  of  Repi-esenfatives  passed  the 
following  resolution : “ Tliat  the  President  of  the 
United  States  he  requested  to  enter  upon  and  to  pros-  of  rebruary 

, j.  ^ . ■ , 1 ‘-8,  18b2. 

ecute,  li’oin  tune  to  tune,  sucli  negotiations  with  the 
seveial  maritime  po^Yers  of  Europe  and  America,  as  he  may 
deem  expedient  for  the  etfectual  abolition  of  the  African  slave- 
trade,  and  its  ultimate  denunciation  as  under  the  law 

of  nations  by  the  consent  of  the  civilized  world.”  The  Secre- 
tary of  State,  Mr.  J.  Q.  Adams,  in  transmitting  this  resolution 
to  the  British  negotiator,  says  that  “ the  President  has  no  hes- 
itation in  acting  upon  the  expressed  and  almost  nnanimons 
sense  of  the  House  of  llepresentatives,  so  far  as  to  declare  the 
willingness  of  the  American  Union  to  join  with  other  nations 
in  the  common  engagement  to  pursue  and  punish  those  Avho 
shall  continue  to  practice  this  crime,  and  to  tix  them  irrevoca- 
bh'  in  the  class  and  under  the  denomination  of  pirates.” 

Most  unfortunately  the  international  arrangements  here  con- 
templated Avere  not  carried  into  effect.  The  British  Govinm- 
ment  conceived,  as  we  presume,  that  it  Avould  be.  very  difficult 
to  bring  the  other  nations  into  similar  agreements,  and  in  fact 
did  not,  itself,  carry  through  Parliament  a hiAv  making  tire 
slave-trade  piracy,  until  March  31, 1824.  Again,  therefore,  the 
old  plan  of  mutual  search  Avas  urged ; but,  although  there  Avas 
some  little  expectation  that  an  agreement  might  be  reached, 
on  the  basis  of  delivering  over  captured  ves.sel3  to  the  juri.sdic- 
tion  of  their  OAvn  country,  and  of  holding  the  captor  respon- 
sible for  any  improper  acts  to  the  tribunal  of  the  captured 
party,  yet  no  definite  result  came  from  the  correspondence  be- 
tween Mr.  Adams  and  the  British  minister  at  Washington. 
This  correspondence  deserves  especial  attention  from  the  abil- 
ity Avith  Avhich  the  Secretary  of  State  discusses  the  right  of 
search. 

The  negotiations  Avere  noAV  transferred  to  England,  Avhere, 
on  the  13Lh  of  March,  in  1824,  the  two  governments, 
by  their  i-epreseiitatives,  signed  a convention  Avhicli 
nearly  accomplished  the  object  at  Avhich  they  had 
been  aiming.  By  this  convention  the  officers  of  certain  public 


384 


OF  THE  RELATIONS  BETWEEN 


§217. 


vessels,  duly  instructed  to  cruise  on  the  coasts  of  Africa,  Amer- 
ica, and  the  West  Indies,  were  authorized  to  detain  and  ex- 
amine vessels  suspected  of  being  engaged  in  the  illicit  traffic 
in  slaves.  If,  after  search,  such  vessels  were  found  to  be  so 
employed,  they  were  to  be  delivered  np  to  the  officers  of  a ves- 
sel of  the  same  nationalitj’,  who  might  be  on  the  station  ; or, 
if  there  were  no  cruisers  nigh,  were  to  be  conveyed  to  the 
country  to  which  such  slavers  belonged,  or  to  one  of  its  depen- 
dencies, and  placed  within  the  reach  of  its  tribunals.  Officers, 
exercising  the  right  of  search  in  a vexatious  or  injurious  man- 
ner, were  to  be  personally  liable  in  costs  and  damages  to 
the  masters  or  owners  of  vessels  detained  and  visited.  In  all 
cases  of  search  the  boarding  officers  were  to  give  certificates 
to  the  captains,  identifying  themselves,  and  declaring  their 
object  to  be  simply  and  solely  that  of  ascertaining  whetlier  the 
mercliantman  was  engaged  in  the  slave-trade.  Other  provis- 
ions secured  the  riglit  of  challenging  witnesses,  and  the  pay- 
ment of  their  expenses.  The  tentli  article  we  give  in  its  own 
words:  “The  high  contracting  parties  declare  that  the  right, 
which,  in  the  foregoing  articles,  they  have  each  reciprocally 
conceded,  of  detaining,  visiting,  capturing,  and  delivering  over 
for  trial  the  merchant  vessels  of  the  other  engaged  in  the  Af- 
rican slave-trade,  is  wholly  and  exclusively  grounded  on  the 
consideration  of  their  having  made  that  traffic  piracy  by  their 
respective  laws ; and  further,  that  the  reciprocal  concession  of 
said  right,  as  guarded,  limited,  and  regelated  by  this  conven- 
tion, shall  not  be  so  construed  as  to  authorize  the  detention  or 
search  of  the  merchant  vessels  of  either  nation  by  the  officers 
of  the  navy  of  the  other,  except  vessels  engaged,  or  suspected 
of  being  engaged,  in  the  African  slave-trade;  or  for  any  other 
purpose  whatever  than  that  of  seizing  and  delivei’ing  iij)  the 
persons  and  vessels,  concerned  in  that  traffic,  for  trial  and  ad- 
judication by  the  tribunals  and  laws  of  their  own  country; 
nor  be  taken  to  affect  in  any  other  way  the  existing  rights 
of  either  of  the  high  contracting  parties.  And  they  do  also 
hereby  agree,  and  engage  to  use  their  infinence,  respectively, 
with  other  maritime  and  civilized  powers,  to  the  end  that  the 


§ 218. 


BELLIGEKENTS  AND  NEUTRALS. 


385 


Afric.an  slave-trade  may  be  decdared  to  be  piracy  under  the 
law  of  nations.” 

When  this  convention  came  before  the  Senate  of  the  United 
States,  they  amended  it  as  follows  : (1.)  Either  party  Amended  by 
might  renounce  tlie  convention  after  six  months’  no-  un'itea”* 
tice.  (2.)  The  cruising  of  vessels  on  the  search  for 
slavers  was  limited  to  Africa  and  the  West  Indies, 

America  being  stricken  out.  (3.)  Article  VII.  of 
the  convention  speaks  of  trying  for  piracy  citizens  or  subjects 
of  either  country  found  on  board  a vessel  not  “carrying  the 
flag  of  tlie  other  party,  nor  belonging  to  the  citizens  or  sub- 
jects of  cither,  but  engaged  in  the  illicit  traffic  of  slaves,  and 
lawfully  seized  b}'^  the  cruisers  of  the  other  party.”  This, 
also,  was  struck  out  by  the  Senate.  Such  cases  would  be  those 
of  American  citizens  on  board  of  Portuguese  or  other  slavers 
subject  to  search  by  special  treaty  with  Great  Britain,  who 
were  committing  an  offense  capital  by  the  laws  of  their  own 
country,  but  not  capital  by  those  of  the  country  of  the  vessel. 
The  convention,  thus  mutilated,  went  back  to  England  to  be 
rejected,  and  so  the  affair  ended. 

§ 218. 

The  treaty  of  Washington,  signed  August  9,  1842,  contains 
new  arrangements  in  regai  d to  the  right  of  search 

° ° ° . Treaty  of 

which  have  served  until  of  late  as  the  rule  of  practice  w.ashmgton 
for  the  cruisers  of  the  two  countries.  In  Article  VIII. 
of  that  treaty  occur  the  following  woi  cls  : “ Whereas,  notwith- 
standing the  laivs  which  have  at  various  times  been  passed  by 
the  two  governments,  that  criminal  traffic  is  still  prosecuted 
and  carried  on;  and  Avhereas  the  United  States  of  America 
and  Her  IMajesty,  the  Queen  of  the  United  Kingdom  of  Girat 
Britain  and  Ireland,  are  determined  that,  so  far  as  it  may  be 
in  their  power,  it  shall  be  effectually  abolished  ; the  parties 
mutually  stipulate  that  each  shall  prepare,  equip,  and  maintain 
in  service,  fui  the  coast  of  Africa,  a sufficient  and  adequate 
squadron  or  naval  force  of  vessels,  of  suitable  numbers  and  de- 
scriptions, to  carry  in  all  not  less  than  eighty  guns,  to  enforce 
2d 


386 


OF  THE  RELATIONS  BETWEEN 


§ 218. 


separntely  and  respectively  the  laws,  rig'hts,  and  obligations 
of  each  of  the  two  countries  for  the  suppression  of  the  slave- 
trade  : the  saitl  squadions  to  he  independent  of  each  other; 
but  the  two  governments  stipulating  nevertheless  to  give  such 
ordei's  to  the  olfivers  commanding  their  respective  forces  as 
shall  enable  them  most  elfectually  to  act  in  concert  and  co- 
operation, upon  mutual  consultation,  as  exigencies  may  arise, 
for  the  attainment  of  the  true  object  of  tliis  article,  copies  of 
all  such  orders  to  be  communicated  by  each  government  re- 
spectively.” To  this,  Article  IX.  adds,  that  whereas,  notwith- 
standing all  efforts  that  may  bo  made  on  the  coast  of  Africa 
for  suppressing  the  slave-trade,  the  facilities  for  carrying  on 
that  traffic  and  avoiding  the  vigilance  of  cruisers,  by  the  fraud- 
ulent use  of  flags  and  other  means,  are  so  great,  and  the  temp- 
tations for  pursuing  it,  while  a market  can  be  found  for  slaves, 
so  strong,  as  lhat  the  desired  result  may  be  long  delayed,  un- 
less all  markets  be  shut  against  the  jviirchase  of  African  ne- 
groes ; the  parties  to  this  treaty  agree  that  they  will  unite  in 
all  becoming  remonstrances  with  any  and  all  powers,  within 
wliose  dominions  such  markets  are  allowed  to  exist ; ami  lliat 
they  will  urge  upon  all  such  powers  the  j^i'opriety  and  duty  of 
closing  such  markets  forever.”  By  Article  Xl.  it  is  provided 
that  the  eighth  article  shall  continue  in  force  five  years  after 
the  ratification,  and  afterwards  until  either  of  the  parties  shall 
signify  a wish  to  terminate  it. 

In  carrying  out  the  provisions  of  this  treaty,  the  squadrons 
of  the  two  nations  have  acted  in  concert  a good  part 
untki’thc  of  tlie  timo  since  1842,  and  ■\vitli  consideralde  success. 

There  are,  however,  serious  difficulties  iu  the  Avay  of 
putting  an  end  to  the  slave-trade  under  this  arrangement, 
d he  United  States  admit  no  right  of  seardi  of  vessels  sustain- 
ing their  national  character.  If,  then,  a British  cruiser  boards 
a vessel  of  the  United  States,  Avhose  papers  are  rigid,  no  seanli 
can  bo  made,  notwithstanding  the  most  flagrant  suspicion, 
hhoul  1 the  bo  irded  vessel,  on  the  other  hand,  prove  to  he  con- 
cerned in  a lawful  tiaffic,  the  cruiser  is  responsible  for  the 
damage  of  the  detention.  Unless,  then,  ships  of  the  two  na- 


§219. 


BELLIGERENTS  AND  NEUTRALS. 


387 


lions  “hunt  in  couples,”  or  officers  of  one  nccompnny  the  ships 
of  the  other,  with  authority  to  superintend  the  visit,  the  trade 
cannot  wholly  be  prevented.  Or  rather  such  entire  prevention 
will  be  impossible  until  the  coast  of  Africa  shall  be  skirted 
with  Christian  colonies,  until  its  interior  be  stimulated  into  an 
industry  which  shall  create  a demand  for  labor  at  homo,  and 
until  the  slave-trade  shall  become  piracy  by  the  voice  of  all 
nations. 

§ 219. 

A question  has  arisen  between  the  government  of  the  United 
States  and  tliat  of  Great  Britain,  as  to  the  true  notion  -(n, at  does 
of  the  right  of  search?  Is  there  any  difference  be-  '{Va«h 
tween  the  right  of  visitation  so  called,  and  the  right  • 
of  search,  — between  the  right  to  ascertain  by  an  inspection  of 
the  ship’s  jiapers  that  she  has  the  nationality  which  she  claims, 
and  the  subsequent  right  of  inspecting  the  vessel  and  cargo, 
for  the  purpose  of  ascertaining  whether  she  has  certain  kinds 
of  merchandise,  as  slaves  for  instance,  on  board,  or  whether  her 
papers  are  fraudulent  ? The  English  doctrine  touching  this 
point  is  expressed  by  Lord  Aberdeen  in  a note  addressed  to  our 
minister  in  London,  of  which  the  following  words  are  a part : 
“ The  right  of  search,  except  when  sj)ecially  conceded  by  treaty, 
is  a purely  belligerent  riglit,  and  can  have  no  existence  on  the 
high  seas  during  peace.  The  undersigned  apprehends,  how- 
ever, that  the  right  of  search  is  not  confined  to  the  verification 
of  the  nationality  of  the  vessel,  but  also  extends  to  the  objects 
of  the  voyage  and  the  nature  of  the  cargo.  The  sole  purpose 
of  the  British  cruisers  is  to  ascertain  whether  the  vessels  they 
meet  with  are  really  American  or  not.  The  right  asserted  has 
in  truth  no  resemblance  to  the  right  of  search,  either  in  prin- 
ciple or  in  practice.  It  is  simply  a right  to  satisfy  the  party, 
who  has  a lejiltimate  intei’est  in  knowing  the  truth,  that  the 
vessel  actually  is  what  her  colors  announce.  This  right  we 
concede  as  freely  as  we  exercise.  The  British  cruisers  are  not 
instructed  to  detain  American  vessels  under  any  circumstances 
whatever : on  the  contrary,  they  are  ordered  to  abstain  from 
all  interference  with  them,  be  they  slavers  or  otherwise.  But 


388 


OF  THE  RELATIONS  BETWEEN 


§ 219 

Avliere  reasonable  suspicion  exists  that  the  American  flag  has 
been  abused  for  the  purpose  of  covering  the  vessel  of  another 
nation,  it  would  appear  scarcely  credible  ....  that  tlie  gov- 
ei'ument  of  the  United  States,  which  has  stigmatized  and  abol- 
ished the  traile  itself,  should  object  to  the  adoption  of  such 
means  as  are  iiulispensably  necessary  for  asceitaining  the 
trutli.”  ^ 

A little  later  we  find  the  English  envoy  at  Washington  in  a 
communication  from  his  government  giving  notice  that  Great 
Britain  still  “ maintained  and  Avould  exercise,  if  necessary,  its 
own  right  to  ascertain  the  genuineness  of  any  flag  which  a sus- 
pected vessel  might  bear ; that  if,  in  the  exercise  of  this  right, 
either  from  involuntary  error,  or  in  spite  of  every  precaution, 
loss  or  injury  should  be  sustained,  a ])rompt  reparation  would 
be  offered ; but  tliat  it  should  entertain  for  a single  instant 
the  notion  of  abandoning  the  right  itself  would  bo  quite  im- 
possible.” 

The  government  of  the  United  States,  on  the  other  hand, 
Doptrino  maintained  that  there  is  no  right  of  visiting  a 

unUc!i7 vessel,  for  the  purpose  of  ascertaining  its  nationality 
States.  distinct  from  the  right  of  search,  known  to  the 

law  of  nations  ; that  the  right  to  visit,  in  order  to  be  effectual, 
must  in  the  end  include  search  ; that  the  right  differs  in  no 
re.spect  from  the  belligerent  right  of  search;  and  that  every 
case  of  detention  of  an  American  vessel  for  this  purpose  is  a 
wrong,  calling  for  rejraration.  These  views  are  set  forth  by 
Mr.  VV^ebster,  then  Secretary  of  State,  in  a letter  to  the  ambas- 
sador of  the  United  States  at  London.  “No  such  recognition,” 
he  there  says  [d  c.,  of  the  right  claimed  by  England],  “has 
presented  itself  to  the  United  States ; but,  on  the  contrary,  it 
understands  that  public  writers,  courts  of  law,  and  solemn 
treaties,  have  for  centuries  used  the  Avord  ‘ visit  ’ and  ‘ search  ’ 
in  the  same  sense.  What  Great  Britain  and  the  United  States 
mean  by  the  ‘right  of  search,’  in  its  broadest  sense,  is  called 
by  continental  Avriters  and  jurists  by  no  other  name  than  the 
‘right  of  visit.’  Nor  can  the  government  of  the  United  States 

1 Comp.  § 213,  note. 


§ 219. 


BELLIGERENTS  AND  NEUTRALS, 


389 


agree  that  the  term  ‘right’  is  justly  applied  to  sucli  exercise 
of  po-u^er  as  the  British  government  thinks  it  indispensable  to 
maintain  in  certain  cases.”  Again,  “ there  is  no  right  to  visit 
in  time  of  peace,  except  in  the  execution  of  revenue  laws  or 
other  munieipal  regulations,  in  which  cases  the  right  is  usually 
exercised  near  the  coast,  or  Avithin  a marine  league,  or  Avhere 
the  vessel  is  justly  suspected  of  Auolating  the  huv  of  nations  by 
piratical  aggression ; but  whenever  exercised  it  is  the  right  of 
search. 

To  Lord  Aberdeen’s  declaration,  that  reparation  aa'ouIcI  be 
made  for  injury  sustained  through  the  exercise  of  this  right  of 
visit,  it  is  replied  that,  “ if  injury  be  produced  by  the  exercise 
of  a right,  it  Avould  seem  strange  that  it  should  be  repaired  as 
if  it  had  been  the  effect  of  a Avrongful  act.  The  general  rule 
of  laAv  certainly  is,  that  in  the  proper  and  prudent  exercise  of 
his  own  rights  no  one  is  answerable  for  undesigned  injury.  It 
may  be  said  that  the  right  is  a qualified  right,  that  is,  a right 
to  do  certain  acts  of  force  at  the  risk  of  turning  out  to  be 
wrong-doers,  and  of  being  made  answerable  for  all  damages. 
But  such  an  argument  avouIcI  prove  every  trespass  to  be  matter 
of  right,  subject  only  to  just  responsibility.  It  is  as  if  a civil 
officer  on  land  haA’e  process  against  one  individual  and  through 
mistake  arrest  another ; this  arrest  is  Avholly  tortious.  The 
analogy  is  a good  one.  .Such  arrests  must  constantly  be  made 
by  policemen  or  sheriffs,  unless  they  are  omniscient ; and  then 
any  injury  ought  to  be  repaired.  No  one  would  think  of  say- 
ing it  Avas  done  under  any  laAvful  exercise  of  authority,  or  that 
it  was  anything  but  a mere  trespass,  though  an  unintentional 
trespass.  The  municipal  laAv  does  not  undertake  to  lay  down 
beforehand  any  rule  for  the  government  of  such  cases ; and  as 
little  does  the  public  laAV  of  the  Avorld  lay  doAvn  beforehand 
any  rule  for  the  government  of  cases  of  involuntary  trespasses, 
detentions,  and  injuries  at  sea,  except  that  in  both  cases,  law 
and  reason  make  a distinction  betAveen  injuries  committed 
through  mistake,  and  injuries  committed  by  design,  the  former 
being  entitled  to  fair  and  just  compensatif  n,  the  latter  de- 
manding exemplary  damages,  and  sometimes  personal  punish- 


390 


OF  THE  RELATIONS  BETWEEN 


§ 219. 


ment.”  In  nnother  passage  the  inquiry  is  made,  “ By  what 
means  is  the  ascertainment  of  the  nationality  of  a vessel  to  be 
effected?  j\Iust  it  lie  to?  Or,  if  it  pursue  its  voyage,  may 
force  he  used  ? Or,  if  it  resist  force  and  is  captured,  must  it 
not  be  condemned  as  resisting  a right,  which  cannot  exist  with- 
out a corresponding  obligation  imposed  on  the  other  party? 
Thus,  it  appears  that  the  right  exercised  in  23eace  differs  noth- 
ing, as  to  the  means  of  enforcing  it  which  must  be  adopted, 
from  the  right  of  search  exercised  in  war,  which  the  English 
government  disclaims  the  use  of.  The  government  of  the 
United  States  admits  that  its  flag  can  give  no  immunity  to 
pirates,  nor  to  any  other  than  regularly  documented  vessels, 
and  it  w'as  upon  this  view  of  the  Avhole  case,  that  it  cheerfully 
assumed  the  duties  of  the  treaty  of  Washington.”  ^ 

This  discussion  took  place  between  1841  and  1843.  Since 

then,  in  1858,  the  British  government  having  sta- 

Fion  of  t7ie  tioned  cruisers  near  Cuba,  for  the  purpose  of  prevent- 

fciiTii"  in  ino-  the  slave-trade  Avith  that  island,  certain  American 
1358  1859  ^ . . • • • 

” ' A'essels  were  visited  on  suspicion,  and  loud  complaints 

arose.  The  Senate  of  the  United  States,  thereupon,  passed 
the  following  resolution  : “ That  American  vessels  on  the  high 
seas  in  times  of  peace,  bearing  the  American  flag,  remain 
under  the  jurisdiction  of  the  country  to  which  they  belong ; ^ 
and,  therefore,  any  visitation,  molestation,  or  detention  of  such 
vessel  by  force,  or  by  the  exhibition  of  force  on  the  part  of  a 
foreign  poAver,  is  in  derogation  of  the  sovereignty  of  the  United 
States.” 

From  the  explanations  Avhich  have  since  taken  place,  it  does 
not  appear  that  the  British  government  Avas  disposed  to  deny 
the  right  Avhich  this  resolulion  implies.^  KnoAving  or  believ- 

A Comp.  AA^lienton’s  [listoni,  pp.  5S5-71S  (from  which  we  h.avc  freely  drawn), 
and  AVchstcr’.s  IFo/t-.s,  vol.  vi.,  p.  029  et  s'q. 

- AAHiat  of  Spanish  or  Mexican  ve.sscls  hearing  this  flag  ? Tlie  flag  at  the  most 
is  only  j'rima  facie  evidence.  The  question  .still  is,  whether  the  ship  is  an  Ameri- 
can or  not  ■? 

^ “In  this  di'Cnssion,”  sav.s  Ilistorlcns  (]i.  1S2),  “the  American  government 
was  un(]Ucstionahly  right  in  ]>oint  of  law.’’  “The  English  government  had  con- 
tended for  a modification  of  that  right  [of  search  in  time  of  peace],  disguised. 


§ 219. 


BELLIGERENTS  AND  NEUTRALS. 


391 


ing  slavers  to  have  an  American  nationality,  it  has,  at  least 
since  1842,  clisclaiinecl  the  right  to  detain  them,  and  finding 
them  to  be  Americans,  upon  examination  of  their  papers,  it 
admits  that  it  cannot  search  them  without  a violation  of  inter- 
national la^v^  What  then  is  the  point  upon  Avliic-h  the  two 
governments  differ.  Is  it  that  the  flag  shall  always  protect 
the  A'essel  which  carries  it?  We  do  not  understand  our  gov- 
ernment to  take  this  position,  which  would  prevent,  in  fact, 
the  execution  of  the  treaties  establishing  the  right  of  mutual 
search  into  Avhich  England  had  entered  with  Spain  and  Portu- 
gal, and  would  render  nugatory  all  attempts  to  put  doAvn  the 
sLwe-trade.  Is  it  that  if  an  American  vessel  is  detained  by 
mistake,  no  reparation  shall  ever  be  paid,  and  no  apology  be 
made  for  a searcli,  or  even  a detention,  that  turned  out  to  be 
unauthorized?  But  the  contrary  has  been  asserted  by  Lord 
Aberdeen  and  others  Avho  have  spoken  for  the  British  gOA^- 
ernment.  The  only  question  between  the  two  poAvers  ought 
to  be  these ; in  ascertaining  the  nationality  of  a vessel  under 
suspicion,  what  procedure  shall  be  prescribed  to  the  officer  in 
charge  of  the  matter,  and  if  injury  is  done  by  the  detention, 
in  Avhat  waj'  shall  it  be  discovered  and  compensated?  The 
English  and  French  governments  have  agreed  on  a code  of 
instructions  relating  to  this  subject  Avhich  are  identical,  and 
that  code  has  been  submitted  to  our  government  for  its  adop- 
tion.^ 

So  stood  the  discussion  between  the  tAvo  governments  on 
the  right  of  search  doAAui  to  1860,  Avhen  the  first 
edition  of  this  Avoik  Avas  published.  A neAv  face  Avas  r;ui'gc“<=nt3 
put  on  affairs  by  the  treaty  signed  at  Washington, 

April  7,  1862,  and  ratified  at  London,  May  25,  by  which  the 
two  poAvers  conceded  the  mutual  right  of  search  to  public 
vessels  specially  provided  with  instructions  for  that  purpose, 
which  are  authorized  to  visit  each  other’s  merchant  vessels, 

under  the  name  of  a n^Iit  of  ‘ visit.ntion,’  Tin's  doctrine,  however,  was  found  to 
be  nnsustainahle,  and  tlie  froverninent  of  Lord  Derby,  in  185S,  intimated  to  the 
American  government  their  formal  abandonment  of  the  pretension. 

} Speech  of  Lord  Malmesbury,  of  Feb.  14,  1859. 


392 


OF  THE  EELATIONS  BETWEEN 


§ 219. 


known  or  suspected  of  trading  in  slaves,  but  only  within  two 
hundred  miles  of  the  African  coast  south  of  parallel  thirtj"- 
two,  and  within  thirty  leagues  of  Cuba.  The  searching  officers 
are  required  to  show  their  instructions,  and  give  certificates  of 
their  rank,  etc.,  to  the  visited  vessel.  Losses  by  arbitrary  and 
illegal  detention  are  to  be  made  good,  etc.  Three  mixed 
courts  wdthout  appeal  are  established,  — at  New  York,  Sierra 
Leone,  and  the  Cape  of  Good  Hope.  Certain  indications  of 
tbe  character  of  vessels  searched  are  mentioned  as  being  pre- 
sumptive evidence  of  intention  to  engage  in  the  slave-trade, 
and  as  justifying  detention  and  precluding  damages  on  this 
account.  Vessels  condemned  by  the  courts  above-mentioned 
are  to  be  broken  up,  and  sold,  unless  used  for  public  purposes. 
The  treaty  was  to  continue  for  ten  years,  and  to  terminate 
thereafter  on  one  year’s  notice.  May  this  treaty  prove  an 
effectual  bar  to  this  wicked  traffic  in  future. 


§ 220. 

Viewing  this  subject  now  for  a moment,  not  in  the  light  of 
Nationality  positive  hiw,  but  ill  that  of  justice,  we  must  admit  the 
icgiliraTtc  distinction  between  search  which  ends  with  ascertain- 
qutry'in^ ^ vessel’s  nationality,  and  search  which  goes 
time  of  peace,  ftipther,  to  be  entirely  reasonable,  and  deserving  of 
recognition  by  the  laiv  of  nations.  There  is  no  middle  ground 
between  the  flags’  being  decisive  proof  of  nationality  and  ex- 
amining upon  suspicion.  Every  nation  has,  in  peace,  the  right 
of  visiting  its  oivn  vessels  on  the  high  seas,  and  it  may  be 
highly  important  so  to  do.  By  the  nature  of  the  case,  mis- 
takes must  sometimes  be  made  in  attempting  to  exercise  such 
a right,  and  as  soon  as  they  are  discovered  search  is  to  be 
broken  off.  Suppose,  again,  that  by  special  convention,  two 
states  were  to  give  up,  reciprocally,  the  right  of  search  in 
war,  and  one  of  them  were  to  be  at  war  with  some  other 
country.  Is  it  not  evident  that  either  such  belligerent  must 
abandon  the  right  of  search  altogether,  or  ascertain  for  itself 
by  inspection  of  papers,  that  particular  vessels  belonged  to 
the  country  with  which  its  agreement  to  abstain  from  search 


§221. 


BELLIGEEENTS  AND  NEUTRALS. 


393 


existed  ? If  an  injury  grows  out  of  detention,  so  may  it  grow 
out  of  detention  on  suspicion  of  piracy,  where  the  examination 
may  proceed  far  beyond  tlie  point  of  ascertaining  the  nation- 
ality of  the  vessel.  If  now  a nation  or  its  cruisers  may  be 
called  to  account  for  injuring  the  innocent  while  doing  a law- 
ful work,  and  if  equitable  claims  for  damages  arising  from  de- 
tention are  allowed,  it  is  not  easy  to  see  what  harm  can  spring 
from  a police  of  the  seas  thus  limited. 

§ 221. 

“England  asserts  the  right  of  impressing  British  subjects  in 
times  of  war  out  of  neutral  ships,  and  of  deciding  by  p.igi,ts  to 
her  visiting  officers,  who  among  the  crews  of  such  hTrleamJn 
merchant  ships  are  British  subjects.  She  asserts  this 
as  a legal  prerogative  of  the  crown  ; which  preroga-  orJirBrit- 
tive  is  alleged  to  be  founded  on  the  English  law  of 
perpetual  and  indissoluble  allegiance  of  the  subject,  and  his 
obligation  under  all  circumstances,  and  for  his  wliole  life,  to 
render  military  service  to  the  crown  whenever  required.”  ^ 

The  exercise  of  this  assumed  right  was  formerly  the  source 
of  more  embittered  feeling  among  the  inhabitants  of  the 
United  States  towards  Great  Britain,  than  any  or  all  other 
causes.  At  different  times  since  the  French  revolution,  and 
especially  before  the  War  of  1812,  attempts  were  made  to  re- 
move by  negotiation  *this  ground  of  vexation  and  animosity. 
In  1803,  a convention  having  this  in  view,  came  to  tlie  point 
of  signature,  but  was  broken  off,  because  the  British  govern- 
ment insisted  that  it  should  not  apply  to  the  “ narrow  seas  ” 
near  the  British  islands.  The  War  of  1812,  it  is  well  known, 
was  justified  on  this  pretext  after  the  orders  in  council  had 
been  rescinded.  The  claim  was  not  alluded  to  in  the  treaty 
of  Ghent,  nor  has  Great  Britain  since  abandoned  it.  The  ex- 
ercise of  this  right  of  search  was  pecidiarly  galling  and  severe, 
because  mistakes  might  arise,  or  be  claimed  to  arise,  from  sim- 
ilarity of  names  ; and  because  emigrant  sailors,  whose  families 
and  hopes  were  on  this  side  of  the  water,  might  be  dragged 
* Mr.  Webster’s  letter  to  Lord  Ashburton,  of  August,  1842. 


394 


OF  THE  EELATIONS  BETWEEN 


§221. 


away  from  tlie  vessel  in  wliicli  tliey  had  shipped,  and  in  which 
they  would  soon  return  to  their  homes. 

The  question  of  the  indefeasibleness  of  the  subjects'  allegi- 
ance, is  by  no  means  closely  connected  with  this  so-called  right. 
Admit  the  doctrine  of  indissoluble  allegiance,  this  right  will 
not  follow.  Reject  it,  and  still  it  might  be  true  that  England 
might  impress  her  subjects  not  naturalized  in  this  countiw,  if 
found  on  our  vessels.  It  is  a claim  of  right  to  enforce  mu- 
nicipal law  outside  of  English  territorial  limits.  But  the  right 
must  be  pronounced  to  have  no  foundation.  A belligerent 
cruiser  has  no  right  to  search  a neutral  on  the  high  sea  for  any 
reason  which  does  not  involve  the  neutral’s  violation  of  his 
neutrality,  i.  e.,  his  attempt  to  aid  one  of  the  parties  at  war. 
For  every  other  purpose  the  ship  is  territory,  so  far  forth,  that 
it  is  under  its  territorial  law,  and  no  one  on  board  can  be  in- 
vaded more  than  another.  The  laws  of  the  land  to  which  a 
vessel  belongs,  govern  on  the  high  seas,  unless  international 
law  interferes.  Is  it,  then,  against  the  law  of  nations,  is  it 
even  a wrong  done  to  a country,  if  a sailor  there  born  is  taken 
on  board  a vessel  as  one  of  its  crew  ? This  will  not  be  pre- 
tended. What,  then,  is  to  be  thought  of  a right  which  in- 
vades the  deck  of  a neutral  vessel  with  force,  in  order  to 
prevent  that  which  a neutral  may  lawfully  do  and  which,  it 
may  be,  the  sailor  in  question  might  lawfully  do,  until  this 
right  was  enforced  against  him,  and  Avhich  he  Avas  bound  to 
do  by  contract  ? Moreover,  it  is  not  easy  to  see,  if  the  right 
exists,  Avhy  it  is  confined  to  a time  of  Avar,  since  it  has  nothing 
to  do  Avith  the  relations  between  the  neutral  and  the  enemy. 
It  is  really,  then,  a perpetual  and  universal  right,  if  a right  at 
all,  and  as  legitimate  on  land  as  on  the  sea.^ 

It  is  tlie  recollection  of  the  arrogance  Avith  Avhich  England, 
as  the  mistress  of  the  seas,  attempted  to  enforce  this  right, 
that  obstructed  her  in  making  effective  arrangements  Avith  the 

1 In  the  second  edition  of  Mr.  Manning’s  excellent  work,  p.  4.'i5  (1875),  this 
right  is  regarded  as  an  adjunct  of  the  right  of  search.  That  is,  because  a cap- 
tain of  a cruiser  can  do  certain  international  acts,  he  may  take  the  opportunity 
of  doing  certain  municipal  act». 


§ 221. 


BELLIGERENTS  AND  NEUTRALS. 


395 


United  States  for  suppressing  the  slave-trade.  Had  this  un- 
happy  wound  not  been  opened  years  since,  it  is  not  unlikely 
that  lier  benevolent  purposes  towards  Africa  would  have  found 
more  earnest  cooperation,  and  have  borne  full  fruit.^ 

We  let  this  section  stand  as  it  was  first  Avritten,  barely  ad- 
ding that  neAV  laws  in  regard  to  naturalization,  the  affair  of 
the  Trent,  and  probably  neAV  views  of  policy  and  of  right, 
seem  to  be  sending  this  I’ight  of  impressing  British  sailors 
found  on  foreign  vessels  into  oblivion. 

1 Comp.  Jlr.  Webster’s  admirable  letter  to  Lord  Ashburton,  of  August  8,  1842, 
given  by  Wheaton  in  his  History,  pp.  773-746,  and  in  Webster’s  TFori's,  vol.  vi., 
p.  318. 


CONCLUSION. 


DEFECTS,  SANCTIONS,  PROGRESS,  AND  PROSPECTS  OF  INTER- 
NATIONAL LAW. 

§ 222. 

International  Law,  as  we  have  viewed  it,  is  a system  of 
rules,  adopted  by  the  free  choice  of  certain  nations  for  the 
purpose  of  governing  their  intercourse  with  each  other,  and 
not  inconsistent  Avith  the  principles  of  natural  justice.  It  has 
groAvn  up  by  degrees,  and  has  been  submitted  during  its  prog- 
ress to  sundry  motlifications.  It  is  the  most  voluntary  of  all 
codes,  but  in  other  respects  shares  the  character  of  national 
law.  We  propose,  in  this  closing  chapter,  to  consider  briefly 
its  defects,  its  sanctions,  its  progress  hitherto,  and  its  prospects 
for  the  future. 

The  principal  deficiencies  of  international  law  grow  out 
of  its  A'oluntarv  nature,  and  its  being;  a larv  for  the 

1.  Defects  ^ 

of  Tnteriia-  coiiduct  of  perfectly  sovereign  independent  bodies. 

Hence  its  slow  progress,  since  it  takes  time  for  modi- 
fications or  improvements  of  it  to  pass  from  one  nation  to 

another  ; and  hence,  also,  in  part,  the  different  views  of  it 

taken  bj^  dilferent  nations,  some  of  Avhom  are  in  advance  of 

their  age  in  a sense  of  justice  or  of  true  internalional  policj’-. 

Its  uncer-  principal  defect  arising  from  this  source  is 

the  tuant  of  an  authoritative  exponent  of  its  princi- 
ples. When  individuals  differ  in  regard  to  their  rights,  the 
hiAV  as  interpreted  by  the  courts,  decides  at  last  betiveen  them. 
But  no  nation  can  set  up  its  opinion  on  a doubtful  question  of 
international  laiv  as  a rule  for  another.  No  text-Avriter  has 


§ 222.  DEFECTS,  ETC.,  OF  INTERNATIONAL  LAW.  897 

such  authority  that  all  will  abide  by  his  judgment ; not  to  say 
that  he  may  need  an  interpreter  himself,  that  new  cases  may 
arise  Avhich  he  has  not  contemplated,  and  that  part  of  the 
law  he  has  laid  down  may  become  obsolete.  And  thus,  if  na- 
tions have  differed  on  some  important  question  touching  their 
rights,  they  have  been  prone,  in  the  absence  of  any  sovereign 
authority  beyond  themselves,  to  take  the  law  into  their  own 
hands,  — to  commit  their  cause  to  the  sword. 

In  regard,  however,  to  the  question,  Avhat  is  actually  inter- 
national laAv,  there  seems  to  be  no  impossibility  that  a congress 
of  men  learned  in  that  department  should  prepare  a code,  on 
which  all  Christian  nations  or  the  great  body  of  them  should 
agree.  Such  a congress  has  appeared  to  many  to  be  highly 
desirable.  That  its  decisions  in  the  shape  of  a code  Avould 
introduce  entire  certainty  into  the  science,  or  that  its  oAvn  lan- 
guage Avould  not  give  rise  to  new  uncertainties,  is  not  to  be 
supposed  ; still,  many  questions  as  to  the  rights  of  ambassa- 
sadors,  of  neutral  territory,  and  of  war  on  land  and  on  the 
sea,  and  the  like,  could  be  so  far  settled,  that  there  would  be 
feAver  grounds  of  controA^ersy,  fewer  unintended  violations  of 
the  laAV  betAveen  nations  than  hitherto.  As  for  the  interpre- 
tation of  such  a code  in  the  general,  and  when  it  should  bear 
on  no  present  dispute,  it  is  not  unlikely  that  a uniform  vieAV 
Avould  groAV  up  among  the  publicists  of  all  nations.  And  if 
additions  or  changes  should  be  found  necessary  in  the  progress 
of  human  society,  they  could  be  made  Avith  more  ease  than 
the  original  code  itself. 

The  uniformity  of  opinion,  in  regard  to  what  international 
laAv  actually  is  at  the  present  time,  is  greatly  aided  by  the  in- 
creasing closeness  of  intercourse  betAveen  those  avIio  devote 
themselves  to  that  science.  The  “ Institution  de  Droit  Inter- 
national,” embracing  as  it  does  ah  the  leading  Avriters  in  this 
department  in  Europe,  and  some  outside  of  Europe,  may  be 
said  to  have  for  its  object,  together  Avith  projects  of  improving 
the  science,  the  criticism  of  its  actual  state  and  of  the  move- 
ments in  the  Avay  of  political  treaties  and  of  congresses  Avhich 
are  taking  place  among  the  nations.  If  those  to  whom  the 


398 


DEFECTS,  PEOGUESS,  AND  PROSPECTS 


§ 222. 


•world  must  look  for  the  actual  state  and  the  defects  of  this 
branch  of  the  law,  shall  come  to  be  of  one  mind,  such  agree- 
ment will  have  a good  tendency  in  the  end  to  produce  uniform- 
ity among  governments.  Such  uniformity  Avould  be  of  immense 
importance  in  preventing  and  in  settling  disputes  between  na- 
tions, for  it  would  be  a disgrace  for  any  nation  to  oppose  rules 
and  principles  which  they  themselves  have  admitted. 

§ 223. 

Another  defect  of  existing  international  law  is  the  limited 
2.  itsnar-  number  of  nations  to  which  it  is  applicable.  As  it  is 
row  limits,  voluntary  code,  to  which  neither  the  lialf-civilized 
nor  the  barbarian  parts  of  the  Avorld  have  given  their  assent, 
the  Christian  states  Avho  make  it  a law  between  tlieinselves, 
are  in  danger  of  acting  as  if  no  rules  of  justice  bound  them  be- 
yond their  oavu  circle,  and  as  if  nations  Avhich  refused  to  abide 
by  their  rules  of  intercourse  in  any  respect  Avere  to  be  treated 
as  enemies.  Formerly  barbarous  tribes  Avere  conquered  under 
grant  from  the  Pope  to  muke  Christians  of  them.  Noav  great 
nations  do  not  scruple  to  seize  on  islands  or  coasts  Avith  no  suf- 
ficient pretext,  or  go  to  Avar  because  a nation  of  the  East,  in 
the  exercise  of  its  sovereignty,  declines  to  trade  Avith  them. 
And  Avlien  AAmr  breaks  out  in  sucli  cases,  tliere  is  no  acknoAAd- 
edged  obligation  to  abide  by  the  ordinary  rules  of  humanity, 
nor  indeed  of  justice.  When  Constantine  AA'as  stormed,  in 
1837,  by  the  French,  besides  the  ordinary  pillage  of  property 
by  the  troops,  a scientific  commission  robbed  the  inhabitants 
of  all  th.e  Arabic  manuscripts  they  could  lay  their  hands  on. 

No  cure  can  be  effectual  for  this  evil,  until  a deeper  moral 
sense  and  feeling  of  brotherhood  shall  dictate  rules,  humane 
and  just,  by  AA'liich  the  vessels  of  civilized  nations  shall  goA^ern 
their  intercourse  Avitli  the  AA^eak  and  the  barbarous  parts  of  the 
AAmrld.  Nor  even  then  aaHI  hiAvless  creAA'S  abstain  from  out- 
rages Avhich  Avill  be  aA’enged  on  the  )iext  ship,  and  thus  neAV 
fuel  be  applied  to  kindle  up  the  ferocity  of  saA'ages.  And  for 
ever}'^  outrage  there  Avill  be  a plea,  Avhich  will  prevail,  because 
the  savages  cannot  tell  their  own  story.  We  have  already  re- 


§ 224. 


OF  INTERNATIONAL  LAW. 


399 


marked  (§  143),  that  rules  of  intercourse  with  such  races  of 
men  cannot  he  conformed  to  our  international  code,  and  that 
punishments  must  often  be  summary  Avith  them,  to  be  under- 
stood. But  is  justice,  is  humanity,  to  be  thrown  off,  as  being 
conventional?  Can  there  be  a doubt  that,  if  all  the  ships  of 
Christian  states  had  dealt  kindly  and  righteously  Avith  the 
islands  of  the  sea,  long  ago  they  AA'ould  liaA’e  been  far  more 
open  to  Christianity  and  civilization  than  they  are  noAV. 

§ 224. 

There  is  no  natural  umpire  betAveen  nations,  and  no  direct 
Avay  of  preA’enting  Avar,  hoA\mver  certain  the  rules  of 

AJcfins  of 

international  hiAv  may  be.  Nations,  hoAveA^er,  like  prcrenting 
individuals,  may  seek  the  good  offices  of  others,  Avhen  tween  na- 
involved  in  strife,  or  friendly  poAA'ers  may  offer  their 
aid  for  the  purpose  of  endeaAmring  to  prevent  Avar  betAveen 
their  friends.  There  are  three  ways  of  doing  this  : mediation, 
arbitration  by  standiny  courts,  and  private  or  compromissory 
arbitration.  And  these  means,  especially  the  tAA’o  latter,  may 
be  used  also  to  restore  peace. 

1.  Mediation  may  be  solicited  or  offered,  and  differs  not 
from  attempts  of  private  parties  to  reconcile  tAvo 
friends.  It  has  a most  natural  oi-igin,  and  has  ahvays 
been  in  use.  At  the  Congress  of  Paris,  in  1856,  the  folloAving 
recommendation  Avas  passed  by  the  repi-esentatives  of  the  poAv- 
ers  there  treating  of  peace.  “The  plenipotentiaries  do  not 
hesitate  to  express  in  the  name  of  their  governments,  the  wish 
that  states,  between  Avhich  a serious  disagreement  should  arise, 
Avould,  before  appealing  to  arms,  haA’C  recourse,  as  far  as  cir- 
cumstances admit,  to  the  good  offices  of  friendly  poAA^ers.” 

Tliis  is  a safe  and  a tame  recommendation  ; but  it  ought  to 
be  taken  into  account  that  in  some  cases,  as  in  that  of  internal 
strife,  the  circumstances  Avould  hardly  admit  of  interposition. 
Mediation  is  of  use  especially  in  preventing  Avar.  Sometimes 
one  or  both  the  parties  may  ask  for  it.  Sometimes  the  offer 
from  a poAverful  third  party  might  almost  amount  to  a threat. 
Sometimes  with  it  a suggestion  of  terms  may  be  made  to  one 


400 


DEFECTS,  PROGRESS,  AND  PROSPECTS 


§ 224. 


or  both  of  the  parties.  Sometimes  the  decided  expression  of 
a friend's  opinion  will  lead  a state  to  pause  or  draw  back  from 
the  use  of  violence. 

2.  A second  way  of  preventing  war,  is  public  arbitration, 
Public  arbi-  which  the  judges,  process,  and  result  are  deter- 
tration.  milled,  not  by  the  parties  pro  re  natd^  but  by  the 
terms  of  an  alliance  intended  to  have  continuance.  It  must 
be  a court  with  a power  to  decide,  and  to  enforce  its  decrees  by 
an  army  placed  by  the  allies  at  its  disposal.  It  seems  evident 
that  such  a court  of  arbitration  could  not  be  founded,  or  could 
not  be  lasting,  unless  the  members  had  the  same  notions  of 
justice,  and  were  nearly  equal  in  power.  At  least,  if  one 
strong  nation  Avere  thus  allied  with  several  Aveak  ones,  there 
Avonld  be  danger  of  its  employing  the  poAver  put  in  its  hands, 
for  the  opjn’ession  of  the  confederacy. 

The  proper  sphere  of  such  a system  Avould  be  in  a collection 
of  homogeneous  states.  Of  course  disobedience  to  a decision 
of  the  court  must  involve  Avar  ; a military  execution  must  be 
put  into  the  hands  of  some  of  the  members,  and  in  the  end, 
the  Avhole  body  instead  of  a few  members,  might  be  iiwolved 
in  Avar.  Or  if  fines  could  be  levied  instead  of  immediate 
force,  this  would  be  but  a delay  of  tlie  evil.  On  the  Avhole, 
unless  the  body  constituting  the  court  had  some  reason  for 
keeping  up  their  organization  besides  that  of  preventing  dis- 
putes, it  is  not  likely  that  it  could  long  hold  together. 


§ 225. 

Plans  of  arbitration  greAV  up  naturally  on  the  soil  of  Greece. 
Plans  of  ar-  Tliis  is  uot  the  place  to  examine  them  at  large; 
bitration.  Only  say  ^ that  it  may  be  laid  doAvn  as  a 

rule  of  public  law  betAveen  those  Greek  states,  Avhich  for  any 
reason  had  a close  union  Avith  one  another,  that  Avar  was  not 
to  be  Avaged,  until  the  method  of  judicial  decision  had  been 
tried  and  failed.  So  also,  — Ave  are  indebted  for  the  remark 
to  Schomann  (“  Gr.  Alterth.,”  ii.,  5),  — after  peace  had  been 
made,  questions  of  interpretation  and  of  breach  of  peace  were 

1 Compare  article  on  Arbitration,  International  Review  for  January,  1874. 


§ 226. 


OF  INTERNATIONAL  LAW. 


401 


to  be  submitted  to  some  man  or  state,  on  whom  the  parties 
could  agree.  If  the  feeling  — which  was  often  disregarded 
— testilies  to  a special  humanity  of  the  Greek  race,  it  must 
be  accounted  for  als(j  by  all  those  causes,  Avhether  physical  or 
pertaining  to  primeval  history',  Avhich  divided  ujj  in  numerous 
small  states  a race  having  a community  of  language,  religion, 
and  political  thought.  It  is  probable  that  all  the  political 
unions  had  courts  not  only  for  deciding  suits  betAveen  citizens 
of  the  several  states,  but  also  for  settling  disputes  between  the 
states  themselves.  But  our  knoAvledge  in  regard  to  the  most 
of  them  is  too  'scanty  to  confirm  this  probability.  In  the 
project  of  the  fifty  years’  truce  (b.  c.  421),  the  parties  to  the 
neAv  alliance  Avere  to  be  independent  states  and  such  as  Avould 
submit  their  quarrels  to  arbitration.  The  Athenian  symma- 
chy,  as  both  Grote  and  Schomann  think,  had  from  the  begin- 
ning, a common  tribunal  at  Delos.  So  in  Crete,  a plan  of 
arbitration  can  be  traced  between  two  toAvns,  and  the  Lycian 
league,  then  a half  Greek  community,  had  a regular  federal 
court. 


rp.  Modern 
1 lie  plan.*!  of  per- 
petual peace. 


§ 226. 

Tlie  desolating  Thirty  Years’s  War  of  the  seventeenth  cen- 
tury led  to  several  plans  of  perpetual  peace,  which 
the  next  century  and  the  present  reneAA'ed. 

“ great  design  ” of  Henry  IV.,  in  France  Avas  intended  Th™ror 
to  preserve  peace  between  the  three  Christian  con- 
fessions,  to  repress  the  Turks,  to  humble  Austria,  and  to  con- 
fine the  house  of  Spain  within  narrower  European  limits. 
There  Avas  to  be  an  artificially  bounded  collection  of  mon- 
archies and  republics,  forming  a great  union,  Avith  a tribunal  or 
congress  having  the  olfice  of  settling  disputes  betAveen  princes 
and  subjects,  and  of  assigning  their  c^uotas  of  aid  to  the 
several  states,  in  the  endeavor  to  expel  the  Turks  out  of 
Europe.  'Fhis  vision,  rather  than  plan.,  suggested  similar 
projects  to  Emery  de  la  Croix,  and  to  Castel  de  St. 

Pierre.  Of  this  as  Avell  as  of  other  similar  plans  an 
extended  account  is  given  by  Dr.  Wheaton  in  his  “ History  of 
20 


402 


DEFECTS,  PROGRESS,  AND  PROSPECTS 


§ 226. 


the  Law  of  Nations.”  ^ St.  Pierre  contemplated  a perpetual  al- 
liance, or  league,  of  which  the  states  of  Europe  should  be  mem- 
bers, having  in  all,  either  singly  or  in  groups,  twenty  votes. 
The  allies  should  renounce  the  right  of  war,  and  submit  their 
differences  to  the  arbitration  of  the  general  assembly  of  the 
league,  whose  decision,  if  it  carried  three  fourths  of  the  votes, 
should  be  final.  If  one  of  the  allies  should  refuse  to  abide 
by  such  decision,  or  make  treaties  in  contravention  of  it,  or 
make  preparations  for  war,  the  allies  should  arm  against  the 
refractory  member  with  the  view  of  reducing  it  to  obedience. 
The  representatives  of  the  league  were  to  be  empowered  to 
pass,  by  a plurality  of  votes,  all  laws  necessary  to  curry  the 
objects  of  the  alliance  into  effect,  but  entire  unanimity  of  the 
allies  was  required  for  changes  in  the  fundamental  articles  of 
their  confederation. 

About  the  year  1789,  and  just  before  the  great  revolulion- 
2.  Jeremy  outburst  iu  Europo,  Jeremy  Bentham  sketched 

Bentiiam's.  general  congress,  which  was  long  after- 

wards published.  The  nations  were  first  to  be  led  to  reduce 
and  fix  their  military  establishments  in  some  fair  ratio,  and 
also  to  abandon  their  colonies,  for  which  so  much  blood  had 
been  shed.  Then  a congress  was  to  be  established,  consisting 
of  two  deputies  from  each  state,  the  agency  of  which  should 
consist  in  reporting  and  circulating  its  decrees,  and  in  placing 
refractory  states  under  the  ban  of  Europe.  Bentham  was  will- 
ing that  a fixed  contingent  should  be  furnished  by  the  several 
states  for  the  purpose  of  enforcing  the  decrees  of  the  court, 
but  thought  that  public  opinion  and  a free  press  would  pre- 
vent the  necessity  of  such  an  extreme  measure. 

In  1795,  Immanuel  Kant  published  a short  essay  inscribed 
“Zum  Ewigen  Friedeii,”  “ touching  perpetual  peace.” 
3 kanus.  preliminary  articles  were  the  following: 

That  no  state  should  be  merged  by  inheritance,  exchange, 

1 For  St.  F:?rro’p,  comp.  Part  ii.,  § ) 7 ; for  Bciitham’s,  Part  iii.,  § 21  ; for  Kaiit 
Part  iv.,  §§  .So,  37.  Comp,  .also  Kant,  Zim  Ewlrjen  Friedeii,  iu  his  Works,  vol. 
V.,  pp.  411-r66  (ccl.  Leipz.,  1838) ; and  Ladd,  in  Prize  Essaijs  on  a Congress  oj 
Nations,  pp.  509-638  (Boston,  1840). 


§ 226. 


' OF  INTERNATIONAL  LAW. 


403 


sale,  01-  gift  in  another  state ; that  standing  armies  should  in 
time  cease ; that  no  state  debts  should  be  incurred  with  refer- 
ence to  extei-nal  polities;  that  no  state  should  inteifere  with 
force  in  the  affairs  of  another.  Tlien  follow  the  definitive  ar- 
ticles, the  first  of  which  is,  that  every  state  shall  have  a re- 
publican constitution,  or  one  in  whieh  all  the  citizens  share  in 
the  power  of  making  laws,  and  deciding  on  questions  of  peace 
and  war.  The  next  is,  that  international  law  shall  be  based 
upon  a confederation  of  free  states ; and  finally,  there  is  to  be 
a citizenship  of  the  world,  limited  to  the  notion  of  the  free 
access  of  all  men  to,  and  their  residence  in  any  stati;  upon  the 
earth’s  surface.  The  congress  which  Kant  proposes  is  not  to 
be  indissoluble,  but  is  to  be  held  and  to  be  dissolved  according 
to  the  pleasure  of  the  members.^ 

In  1838  the  New  York  Peace  Society  petitioned  the  House 
of  Re23resentatives  of  the  Congress  of  the  United 
States,  that  all  difficulties  with  other  states  should  Congress  on 
thenceforth  be  submitted  to  third  jiowers,  and  that  a peace  soci- 
the  government  should  be  requested  to  unite  with 
other  nations  in  establishing,  if  possible,  a board  of  interna- 
tional arbitration  with  a code  of  rules  obligatory  on  the  par- 
ties to  the  jDlan.  The  House  of  Representatives  had  no  power 
to  do  anything  excejit  to  express  an  opinion  on  such  a subject. 
An  able  report,  adverse  to  the  jirayer  of  the  ]aetitioneis,  was 
presented;  in  which  some  of  the  points  were  that  without  the 
unanimity^  of  the  nations,  and  even  if  one  great  power  alone 
should  decline  concurrence,  the  ^dan  would  be  rendered  abor- 
tive ; that  a code  for  which  the  p»arties  to  it  were  not  prepared 
could  do  little  good  ; and  that  the  decrees  of  a board  of  arbitra- 
tors would  be  either  nugatory  or  might  be  used  for  the  worst 
ends,  to  which  we  may  add  that  it  is  hardly  conceivable  that 
a strong  nation  woidd  submit  vital  jDoints  of  its  policy  to  a 
court  of  arbitration.  The  committee,  however,  which  made 
the  report  concurred  with  the  memorialists  in  recommending 
the  submission  of  our  international  difficulties  to  imjDartial 
powers,  if  that  could  be  effected 

^ Comp.  Wheaton’s  History,  p.  754,  and  Kant’s  Rechtlehre,  § 61,  the  end  of  the 
treatise. 


404 


DEFECTS,  PROGRESS,  AND  PROSPECTS 


§ 226. 


In  his  “Outlines  of  an  International  Code”  (1872),  Mr.  D. 
Mr.  Field's  I^eld  lias  a plan  of  a court  for  arbitration,  to  be 
plan.  constructed  by  a league  of  nations,  'which  is  worthy  of 
notice.  When  an  agreement  cannot  otherwise  be  effected,  a 
joint  high  commission  of  ten,  chosen  in  equal  numbers  by  the 
two  parties  between  whom  a difficulty  subsists,  shall  report 
within  six  months  their  efforts  to  reconcile  their  principals. 
If  they  are  unsuccessful,  those  parties  shall  give  notice  of  the 
same  to  the  other  nations  that  have  accepted  the  code,  and  the 
latter  shall  prepare  the  way  for  a high  tribunal  of  arbitration, 
by  their  nomination  of  four  persons  each,  out  of  whom,  by 
successive  rejections,  the  contestants  may  eliminate  such  as 
they  do  not  like,  until  seven  only  remain.  These  are  to  com- 
pose the  court.  The  parties  to  the  code  are  to  bind  them- 
selves to  unite  in  forming  the  commission  and  the  tribunal, 
and  to  submit  to  the  decision  of  the  latter,  whenever  their 
cases  come  before  it.  If  any  one  of  them  shall  begin  a war 
in  violation  of  the  code,  the  others  are  to  bind  themselves  to 
resist  the  offending  nation  by  force.  The  selection  of  arbitra- 
tors, as  above  described,  is  suggested  by  a plan  under  the  old 
confederation  of  the  United  States. 

There  seems  to  be  no  provision  in  this  plan  for  the  event  of 
a member  refusing  to  obey  the  arbitrators’  sentence.  And 
yet  this  would  be  most  likely  to  happen,  when  the  most  impor- 
tant disputes  were  brought  before  them.  In  any  plan  a danger 
would  arise  from  the  more  powerful  membei's  resisting  the  de- 
crees of  the  court  or  making  it  their  instrument. 

§ 227. 

3.  Private  arbitration  is  simply  an  agreement  of  two  powers 
3.  Privateor  Submit  their  differences  to  a third  party,  with  a 
Fo^v'arbi-’^'  promise  to  stand  by  its  decisions,  if  the  conditions 
tration.  complied  with  according  to  whicli  the  case  is  put 

into  its  hands.  This  form  of  arbitration,  which  is  common 
over  the  world,  is  borrowed  especially  from  Roman  private  law, 
as  it  stood  in  the  time  of  Justinian,  when  the  parties  no  longer 
bound  themselves  by  tlie  penalty,  which  had  been  at  first  the 


§ 227. 


OF  INTERNATIONAL  LAW. 


405 


essence  of  the  transaction.  Together  with  the  engagement  to 
stand  by  the  sentence,  the  ti’ansaction  may  include  the  appoint- 
ment of  arbitrators,  and  the  consent,  it  might  be,  to  special 
rules,  such  as  lelated  to  the  time,  the  place,  and  the  length  of 
sitting  of  the  boartl  of  arbitration.  The  number  of  arbiti'ators 
may  vary  from  one  upAvard.  The  choice  of  them  may  pro- 
ceed from  the  parties,  or  these,  after  selecting  together  or 
apart  an  even  number,  may  leave  the  umpire  to  be  named  by 
those  already  cliosen,  or  they  may  request  foreign  poAvers  to 
name  one  or  more  to  act  concurrently  Avith  their  oAvn  appoint- 
ees. Thus  the  Geneva  tribunal  for  the  “ Alabama  claims,” 
Avas  composed  of  five  persons  named  by  the  Queen  of  Eng- 
land, the  President  of  the  United  States,  the  King  of  Italy, 
the  President  of  the  SAviss  Confederation,  and  the  Emperor  of 
Brazil,  respectiA'ely.  Sometimes  a single  sovereign  or  magis- 
trate is  requested  by  the  parties  to  take  charge  of  a difficulty 
betAA'een  them,  in  Avhich  case  the  evidence  bearing  on  the  case 
Avill  be  gathered  and  laid  before  him  by  persons  of  his  ap- 
pointment, and  the  parties  through  their  agents  AA'ill  have  a 
hearing. 

The  parties  may  make  their  own  rules  for  the  transaction, 
but  if  they  make  none,  or  omit  to  make  any  that  are  of  essen- 
tial importance,  Roman  laAv  is  understood  to  guide  the  pro- 
ceedings in  those  particulars.^ 

A decision  made  by  arbitrators  Avould  become  null  for  va- 
rious reasons.  If,  for  instance,  their  number  Avere  broken  by 

1 Comp.  HefiFter,  § 109.  “ In  case  there  are  clifFerences  of  opinion  [among  ar- 

bitrators], without  question  tlie  majority  is  to  be  regarded  as  deciding  in  the 
matter.”  Pliillimore,  iii.,  p.  4.  If  there  be  an  uneven  number  of  arbitrators,  the 
opinion  of  the  majority  would,  according  to  the  reason  of  the  thing,  and  the  yus 
commune  of  nations,  be  conclusive.”  To  same  effect,  Bluntschli,  Mod.  Volckerr., 
§493.  “The  sentence  of  tlie  majority  is  the  sentence  of  tlie  entire  copi't.”  So 
Dr.  Goldschmidt  in  his  excellent  Projet,  submitted  to  the  Institnt  de  Droit  In- 
ternational in  1874,  § 25.  “ Tonte  decision,  de'Hniiivcon  provisoire,  sera  prise  a 
la  majoritc  de  tons  les  arbitres,”  This  is  according  to  the  rule  of  Roman  law. 
Ulpian  in  the  Digest,  iv.,  8,  L.  27,  § 3,  says;  “Si  major  pars  consentiet,  ca 
stabitnr;  alioquin  poena  eommitteiur.”  And  he  adds  that  a comproiniss  is 
allowed  where  ihe  number  of  arbiters  is  odd,  not  because  it  is  easy  to  have  an 
agreement  of  all,  “ sed  quia,  etsi  dissentiant,  iuvenitur  pars  major  cu  us  arbitrio 
stabitur.” 


406 


DEFECTS,  PROGllESS,  AND  PROSPECTS 


§ 227. 


death ; or  if  any  of  them  became  incapable  of  acting  by  rea- 
son of  infirmity  or  insanity ; or  if  any  of  them  were  guilty  of 
fraud  ; or  if  the  award  were  not  rendered  Avithin  the  time 
specified ; or  if  their  decision  went  outside  of  the  points  sub- 
mitted to  them,  it  might  be  rejected  by  eitlier.  An  instance 
of  the  rejection  of  a sentence  on  the  hitter  account  is  fur- 
nished by  the  procedure  in  regard  to  the  ]\Iaine  boundary, 
where  the  arbitrator,  the  King  of  the  Netherlands,  gaA'e  his 
aAvard  upon  Avhat  Avas  not  submitted  to  him,  by  undertaking 
to  fix  upon  a boundary  AAdiich  neither  party  claimed  to  be  the 
right  one.  M.  Cahm  speaks  of  this  as  a case  in  AAdiich  “ the 
arbiter  left  the  question  of  right  in  suspense,  and  confined 
himself  to  the  suggestion  of  a basis  of  arrangement,  entirely 
neAA"  and  hypothetical,  such  a solution  not  haAnng  entered  into 
the  forethought  of  the  parties”  (i.,  795). 

Ancient  history  furnishes  us  AAdth  examples  of  disputes  be- 
ing referred  to  indiA’iduals  supposed  to  be  impa.rtial.  Thus, 
Periander  reconciled  Mitylene  and  Athens,  and  Themistocles 
settled  a quarrel  betAA'een  Corinth  and  Corcyra.  Or  it  might 
be  that  the  dispute  aa'us  committed  to  a state  friendly  to  both 
parties.^ 

In  modern  times  such  compromissory  arbitration  has  been 
not  unfrequently  resorted  to,  but  most  commonly  in  cases  of 
small  importance.  Some  nine  cases  occurring  in  Europe  be- 
fore the  eighteenth  century  (during  which  they  Avere  less  fre- 
quent), may  be  found  mentioned  in  the  article  in  the  “ Inter- 
national RevieAV  ” for  January,  1874,  referred  to  above.  M. 
Calvo  speaks  of  nine  other  cases,  in  a majority  of  Avhich  an 
American  state  Avas  a part}'"  (i.,  § 667).  Other  examples  may 
be  found  in  the  work  of  Dr.  Twiss  on  the  rights  of  states  in 
Avar  (p;  7).  A very  singula,r  use  of  this  procedure  may  be 
found  to  be  suggested  in  the  final  act  of  the  Congress  of  Vi- 
enna (Art.  Ixix.),  Avhere  the  question  at  issue  AA-as,  Who  Avas 
duke  of  that  part  of  the  Duchy  of  Bouillon,  Avhich  was  made 
to  pertain  to  the  Kingdom  of  the  Netherlands. 

The  diplomatic  history  of  the  United  States  has  furnished 

^ Comp.  Schoemann,  Gr.  Altei-th.,  ii.,  4. 


§ 228. 


OF  INTEKNATIONAL  LAW. 


407 


instances,  .some  sixteen  or  move  in  number,  of  disputes  thus 
settled ; most  of  which  related  to  boundaries  or  pecuniary 
claims  for  injury  to  citizens.  IMore  important  than  any  others, 
were  the  arbitrations  and  commissions  provided  for  by  the 
treaty  of  Washington  in  1871.  (See  Appendix  ii.  under  that 
year,  end.) 

In  almost  all  cases  of  disputes  as  w’ell  Avith  European  pow- 
ers as  with  the  states  on  this  continent,  the  United  States, 
it  is  probable,  Avill  continue  to  have  recourse  to  this  method 
for  the  settlement  of  difficulties.  For  our  difficulties  Avith 
other  powei's  will  not  generally  be  political,  but  Avill  grow  out 
of  Avrongs  dcme  to  individuals,  or  other  transient  acts  of  injus- 
tice on  our  part  or  on  theirs,  Avhich  Avill  admit  of  an  exact  es- 
timate or  be  atoned  for  by  apology. ^ 

§ 228. 

But  what  are  the  sanctions  of  international  Iuav  to  deter 
from  AVTong  ? They  are.  First,  Within  each  separate 
state  municipal  laws  confirming  it,  and  making  penal  interna- 
its  violation.  Such  are  the  laAvs  of  the  United  States 
Avhich  protect  the  persons  of  ambassadors,  or  prohibit  offenses 
against  neutral  rights,  and  the  like.  (Comp.  §§  29,  176.) 
Secondly,  The  moral  sentiment  of  each  and  all  the  states  Avhich 
have  consented  to  the  existing  laAv  of  nations.  This  is  a con- 
siderable and  an  increasing  force,  one  Avhich  comes  into  the 
recesses  of  palaces  and  cabinets ; and  Avhich  sometimes  speaks 
in  threatening  tones  against  gross  wrongs.  Thirdly,  War. 
Great  as  the  evil  of  Avar  is,  it  is  not  in  the  existing  condition 
of  mankind  the  greatest.  It  would  liaA^e  been  a greater  eAul 
for  the  states  of  Europe  to  have  surrendered  their  indepen- 
dence to  Napoleon,  than  it  Avas  to  recoA'er  it  by  the  sacrifice 
of  untold  treasure  and  countless  lives.  Nations  are  reformed 
by  the  sobering  influences  of  Avar.  Nations  are  exalted  by 

1 For  tlie  .subject  of  arliitration,  besides  the  writers  on  intcrnutioiual  law  in 
general,  compare  especially,  Goldscliiniilt’s  excellent  essay  in  German  and  French, 
pre.-ented  to  tlie  Institnt  de  Droit  Intcrmitional,  and  published  in  the  Revue  de 
Droit  Internationale,  for  1874;  Ficrantoui,  Arbitrati  //iternaz/ooM/i,  Naples,  1872, 
and  Laveleye,  Des  Causes  ActueUes  de  Guerre,  etc.,  Brussels,  1873. 


408 


DEFECTS,  PROGEESS,  AND  PROSPECTS 


§ 228. 


contending  in  war  for  something  which  is  good.  Let  not  this 
dread  sanction,  then,  be  thought  to  be  of  no  nse.  War  often 
cures  the  internal  maladies  which  peace  has  fostered. 

§ 229. 

But  war  often  for  a time  exhausts  and  demoralizes,  it  some- 
Actuai  times  perpetuates  injustice,  it  is  occasionally  under- 

Fntfraa-  taken  against  the  clearest  provisions  of  the  law  of 

tionaiiaw.  natioiis.  Has,  then,  this  law  of  nations,  amid  the 
violations  of  its  code,  on  the  whole  made  progress  ? To  this 
question  a . negative  answer  can  be  given  only  by  those  who 
plant  their  argument  on  gross  offenses  rising  up  here  and 
there,  as  we  look  down  history,  but  who  do  not  enough  take 
into  account  the  general  strain  and  spirit  of  the  ages.^  When 
the  question  is  made  to  embrace  a large  tract  of  time,  and  we 
search  for  pi’ogress  between  the  eras  while  the  codes  of  Greece 
and  Rome  were  living  ones,  and  the  present  day,  no  one  can 
hesitate  what  answer  to  give  to  it.  But  has  there  been  prog- 
ress between  the  time  of  Grotlus  (1625),  or  the  peace  of 
Westphalia  (1648),  and  the  most  modern  times?  An  answer 
by  a very  competent  authority,  — Dr.  Wheaton,  — at  the  close 
of  his  history,  sums  up  the  principal  heads  of  progress  as  fol- 
lows : — 

“ That  the  pacific  relations  among  nations  have  been  maintained  by 
the  general  establishment  of  permanent  missions,  and  the  general  rec- 
ognition of  the  immunities  of  public  ministers. 

“ Although  the  right  of  intervention  to  preserve  the  balance  of 
power,  or  to  prevent  the  dangers  to  which  one  country  may  be  ex- 
posed by  the  domestic  transactions  of  another,  has  been  frequently 
assumed ; yet  no  general  rules  have  been  discovered  by  which  the  oc- 
casions which  may  justify  the  exercise  of  this  right,  or  the  extent  to 
which  it  may  be  carried,  can  be  laid  down  ; and  that  it  remains,  there- 
fore, an  undefined  and  undefinable  exception  to  the  mutual  indepen- 
dence of  nations. 

“The  exclusive  dominion,  claimed  by  certain  powers  over  particular 

1 Comp,  for  a gloomy  view  of  the  progress  of  intcruatioual  law,  the  article* 
(referred  to  in  § 3)  in  the  Edinburgh  Review,  No.  156,  for  April,  1843. 


§ 229. 


OF  INTERNATIONAL  LAW. 


409 


seas  lias  been  abandoned,  as  an  obsolete  pretension  of  barbarous  times  ; 
the  general  use  of  the  bigh  seas,  without  the  limits  of  any  particular 
state,  for  the  purposes  of  navigation,  commerce,  and  fishery,  has  been 
conceded  ; and  the  right  of  search  on  the  ocean  limited  to  the  periods 
of  war,  except  certain  conventional  arrangements  applicable  to  the 
African  slave-trade. 

“The  navigation  of  the  River  Scheldt,  which  was  closed  by  the 
treat}'  of  Westphalia,  in  favor  of  the  commerce  of  Holland,  has  been 
reopened  to  all  nations  ; and  the  general  right  to  navigate  the  Rhine, 
the  Elbe,  the  Danube,  and  other  rivers  which  separate  or  pass  through 
different  states,  has  been  recognized  as  a part  of  the  public  law  of 
Europe. 

“ The  colonial  monopoly,  that  fruitful  source  of  wars,  has  nearly 
ceased ; and  with  it  the  question  as  to  the  right  of  neutrals  to  enjoy  in 
war  a commerce  prohibited  in  time  of  peace. 

“ The  African  slave-trade  has  been  condemned  by  the  opinion  of  all 
Christian  nations,  and  prohibited  by  their  separate  laws,  or  by  mutual 
treaty  stipulations  between  them. 

“ The  practices  of  war  between  civilized  nations  have  been  sensibly 
mitigated,  and  a comparison  of  the  present  modes  of  warfare  with  the 
system  of  Grotius,  will  show  the  immense  improvement  which  has 
taken  place  in  the  laws  of  war. 

“Although  there  is  still  some  uncertainty  as  to  the  rights  of  neutral 
navigation  in  time  of  war,  a conventional  law  has  been  created  by 
treaty,  which  shows  a manifest  advance  towards  securing  the  com- 
merce of  nations  which  remain  at  peace,  from  interruption  by  those 
which  are  engaged  in  war. 

“ The  sphere,  within  which  the  European  law  of  nations  operates, 
has  been  widely  extended  by  the  unqualified  accession  of  the  new 
American  states ; by  the  tendency  of  the  Mohammedan  powers  to 
adopt  the  public  law  of  Christendom ; and  by  the  general  feeling  even 
among  less  civilized  nations,  that  there  are  rights  which  they  may 
exact  from  others,  and  consequently  duties  which  they  may  be  re- 
quired to  fulfill. 

“ The  law  of  nations,  as  a science,  has  advanced  with  the  improve- 
ments in  the  principles  and  language  of  philosophy  ; with  our  extended 
knowledge  of  the  past  and  present  condition  of  mankind,  resulting 
from  deeper  researches  into  the  obscurer  periods  of  history,  and  the 
discovery  of  new  regions  of  the  globe  ; and  with  the  greater  variety 


410 


DEFECTS,  PROGRESS,  AND  PROSPECTS 


§ 229. 


and  importance  of  tlie  questions  to  which  the  practical  application  of 
the  system  has  given  rise. 

'•  And  lastly,  tlie  law  of  nations,  as  a system  of  positive  rides  reg- 
ulating the  mutual  intei'course  of  nations,  has  improved  with  the 
general  improvement  of  civilization,  of  which  it  is  one  of  the  most  val- 
uable products.” 

To  which  we  may  add,  that  since  Dr.  Wheaton's  history 
was  written,  in  1843,  — 

Free  navigation  of  nearly  all  the  rivers  of  the  world,  under 
the  jurisdiction  of  Christian  states,  has  been  conceded  to  those 
who  dwell  on  their  upper  waters,  if  to  no  others  ; 

That  the  Black  Sea  is  open  to  all  merchant  vessels,  and  the 
navigation  through  the  Danish  Straits  freed  from  onerous 
duties ; 

That  most  of  the  leading  nations  of  the  world  have  agreed, 
that  as  between  them,  free  ships  shall  make  free  goods,  and 
that  privateering  shall  cease ; 

That  European  or  Christian  international  law  is  spreading 
itself  over  the  eastern  Avorld  far  beyond  what  Dr.  Wheaton 
could  have  conceived  to  be  probable  when  he  Avrote  his  his- 
tory ; and  that  the  rules  of  Avar  on  land  are  becoming  increas- 
ingly humane,  and  its  interference  Avith  innocent  trade  in  Avar 
is  less  of  an  evil. 

§ 230. 

Is  there  reasonable  expectation  that  this  progress  Avill  con- 
Pro?pccts  of  fiw^ie  in  future  times  ? This  question  resoh^es  itself 
.■a^iaw^for"  the  broader  one,  Avhether  true  civilization  built 

the  future.  souiid  morality  and  religion  is  destined  to  advance 
or  to  decline  ? If  nations  are  to  groAV  in  moral  enlightenment; 
if  there  is  to  be  a faith  that  the  great  Ruler  of  nations  has  put 
them  upon  trial,  as  truly  as  individuals,  so  that  no  amount 
of  power  can  save  from  punishment,  or  ev'en  from  extinc- 
tion, a nation,  in  AAdiich  the  feeling  of  justice  is  blunted  by  a 
long  course  of  sinning; ; if  opinion  is  destined  to  circulate  so 
freely  through  the  Avorld  that  crimes  committed  against  other 
and  weaker  states  shall  stamp  disgrace  on  a nation  through 


§ 231. 


OF  INTERNATIONAL  LAW. 


411 


coming  time,  and  a sense  of  character  over  the  world  shall  he 
felt  to  be  valuable  ; if  national  crimes  shall  appear  to  all  to  be 
hurtful  to  their  perpetrators ; if,  finally,  closer  intercourse 
shall  bring  the  nations  more  nearly  to  the  same  standard  of  jus- 
tic(‘,  then  will  international  law  purify  itself,  until  it  reaches 
the  perfection  of  justice  attainable  by  man,  and  with  this 
that  degree  of  humanity  and  of  renunciation  of  strict  light 
which  is  compatible  with  the  distinct  sovereignty  and  special 
sphere  of  seiiarate  nations.  That  such  advance  will  be  made, 
we  believe,  for  we  can  see  no  limit  to  the  influences  of  the 
moral  and  religious  pow'ers  which  the  Author  of  Nature  and 
of  the  Gospel  has  put  into  motion.  And  it  is  probable  that 
the  advance  will  be  more  rapid  than  heretofore,  although  by 
no  means  easy  or  unopposed. 

§ 231. 

From  all  that  has  been  said  it  has  become  apparent  that  the 
study  of  international  law  is  important,  as  an  index  importance 
of  civilization,  and  not  to  the  student  of  law  only, 
but  to  the  student  of  history.  In  our  land  especially 
it  is  important,  on  more  than  one  account,  that  this  science 
should  do  its  share  in  enlightening  educated  minds.  There  is, 
with  the  growth  of  the  feeling  of  strength,  an  increasing  ten- 
dency to  commit  wrongs  upon  other  and  perhaps  w^eaker  na- 
tions, which  needs  for  its  counteraction  an  enlightened  opinion 
pervading  the  educated  men  of  the  country.  There  have  been 
moie  cases  than  one  where  the  government  has  been  obliged 
to  retire  from  a position  which  Avould  not  have  been  taken  if 
public  law  had  been  more  studied.  This  department,  again, 
of  public  justice  is  peculiarly  enlarging  to  the  mind.  We  con- 
template in  it  right  and  humanity  on  a great  scale.  We  see 
in  it  the  single  state  on  the  one  hand,  and  the  w’orld  of  nations 
on  the  other,  acknowledging  obligations  of  justice  and  human- 
ity as  common  to  all,  and  the  same  for  all ; ^ve  see  one  law 
pushing  itself  by  its  moral  force  everywhere,  until  it  shall  em- 
brace and  unite  all  men.  There  are  no  such  universal  ideas 
except  those  of  religion,  and  both  domains  will  spread  together. 


412  DEFECTS,  PROGEESS,  AND  PROSPECTS.  §231. 

And  the  spread  even  of  the  admission  that  the  law  of  nations 
ought  to  be  one  and  the  same  everywhere,  would  strengthen 
the  feeling  of  world-brotlierhood  of  men,  as  by  their  nature 
formed  for  moral  communion,  more  than  anything  except  a 
common  religion  of  mankind. 

And  again,  every  educated  person  ought  to  become  ac- 
quainted with  international  law,  because  he  is  a responsible 
member  of  the,  body  politic ; because  thei-e  is  danger  that  party 
views  will  make  our  doctrine  in  this  science  fluctuating,  unless 
it  is  upheld  by  large  numbers  of  intelligent  persons  ; and  be- 
cause the  executive,  if  not  controlled,  will  be  tempted  to  as- 
sume the  province  of  interpreting  international  law  for  us.  As 
it  regards  tlie  latter  point  it  may  be  said,  that  wliile  Congress 
has  power  to  define  offenses  against  the  laws  of  nations,  and 
thus,  if  any  public  power,  to  pronounce  authoritatively  what 
the  law  of  nations  is,  the  executive  through  the  Secretary  of 
State,  in  practice,  gives  the  lead  in  all  international  questions. 
In  this  way  the  Monroe  doctrine  appeared ; in  this  way  most 
other  positions  have  been  advanced ; and  perhaps  this  could 
not  be  otherwise.  But  we  ought  to  remember  that  the  su- 
preme executives  in  Europe  have  amassed  power  by  having 
diplomatic  relations  in  their  hands,  that  thus  the  nation  may 
become  involved  in  war  against  its  will,  and  that  tlie  preven- 
tion of  evils  must  lie,  if  there  be  anj^  with  the  men  who  have 
been  educated  in  the  principles  of  international  justice. 

I close  this  treatise  here,  hoping  that  it  may  be  of  some  use 
to  ray  native  land,  and  to  young  men  who  may  need  a guide  in 
the  science  of  which  it  treats. 


APPENDIX  I. 


A BEIEF  SELECTION  OF  WORKS  AND  DOCUMENTS  BEARING 
ON  INTERNATIONAL  LAW. 


A.  ITS  LITERATURE  AND  HISTORY. 

Von  Ompteda.  “ Literatur  des  gesamniten,  so  wolil  naturlichen  als  posi- 
tiven,  Vdlkerreclits.”  Regensburg  (Ratisbon),  1785,  2 parts,  continued  by 

Von  Kamptz.  “ Neue  Literatur  des  Volkcrrechts  seit  dem  Jalire,  178-1.” 
Berlin,  1817. 

Robert  v.  Mobl.  “ Die  Geschichte  und  Literatur  der  Staatswissensebaf- 
ten.”  Erlangen,  1855-1858,  3 vols.  Tbe  first  volume  ineludes  a monograpby 
on  tbe  more  recent  literature  of  tbe  law  of  nations,  containing  valuable 
criticisms. 

Tbe  works  of  KlUber  and  De  Martens  on  tbe  Law  of  Nations,  in  tbe 
edition  of  tbe  former  by  Morstadt  (1851),  and  of  tbe  latter  by  Verge  (1858), 
contain,  each,  a selection  of  authorities  and  helps  in  that  science,  and  tbe 
notes  to  Heffter’s  “ Vdlkerrccht  ” contain  copious  references  to  other 
writers. 

Rob.  Ward.  “ Enquiry  into  tbe  Foundation  and  History  of  tbe  Law  of 
Nations  in  Europe,  from  tbe  Time  of  tbe  Greeks  and  Romans  to  tbe  Age  of 
Grotius.”  London  (and  Dublin),  1795,  2 vols. 

Henry  Wheaton.  “ History  of  tbe  Law  of  Nations  in  Europe  and  Amer- 
ica, from  the  Earliest  Times  to  the  Treaty  of  Washington,  1842.”  New 
York,  1845.  This  work  was  first  written  and  published  in  French  (Leip- 
zig, 1841),  as  an  answer  to  a prize  question  proposed  by  tbe  French  acad- 
emy of  moral  and  political  sciences,  and  was  considerably  enlarged  when 
it  appeared  in  its  English  dress. 

Ed.  Osenbriiggen.  “ De  Jure  Pacis  et  Belli  Romanorum,  liber  singularis,” 
Leipzig,  1836. 

K.  Tb.  Putter.  ” Beitriige  zur  Vblkerrecbtsgescbicbte  und  Wissen- 
sebaft.”  Leipzig,  1843. 

Muller-Jochmus.  ” Geschichte  des  Volkerrecbts  im  Altertbum,”  Leip- 
zig, 1848. 


414 


APPENDIX  I. 


Laurent  (F.).  “ Histoirc  da  Droit  des  Gens,”  Ghent,  1850,  Paris,  1851, 
3 vols.  The  first  volume  treats  of  the  Oriental  nations,  the  second  of  the 
Greeks,  the  third  of  the  Romans.  Comp.  Mold’s  criticism,  u.  s.,  i.,  374. 

B.  DOCUMENTS,  INCLUDING  DIPLOMATIC  HISTORY. 

1.  The  Early  Maritime  Laws. 

These  are  chiefly  contained  in  Pardessus’  “ Collection  des  Lois  Maritimes 
Anterienrcs  an  XVlIl'  Sihcle,”  Paris,  G vols.,  4to,  1828-1845. 

The  earliest  of  them,  the  laws  of  the  Rhodians,  belongs  to  the  ninth  cen- 
tury. To  the  twelfth  century  pertain  the  maritime  laws  contained  in  the 
Assises  des  Bourgeois  du  Royaume  de  Jerusalemme,  the  Rooles  or  Juge- 
mens  d’Oleron,  and  the  Jugemcns  de  Damin,  or  Lois  de  AFest-Capelle. 
Damm,  in  Flanders,  the  poi  t of  Bruges,  began  to  be  a town  of  importance 
before  1180.  Its  customs  were  principally  copied  from  those  of  the  isle  of 
Oleron.^  The  “Consolalo  del  Marc,”  composed  at  Barcelona  in  the  Cata- 
lonian dialect,  the  most  extensive  and  important  of  the  se.a-codes  (comp. 
§ 189),  was  collected  in  the  fourteenth  century,  and  to  the  same  century 
must  be  ascribed  the  first  laws  of  Wisby  on  the  island  of  Gothland,  and  the 
customs  of  Amsterdam;  but  the  sea-code  of  AVisby  belongs  to  the  next  cen- 
tury, and,  according  to  llullmann  (“  Stiidtewesen  des  Mittelaltcrs,”  i.,  182), 
was  borrowed  in  part  from  the  laws  of  Oleron  and  of  Amsterdam.  The 
laws  of  the  Hanseatic  league  are  of  various  dates,  especially  of  the  four- 
teenth and  fifteenth  centuries,  and  the  ‘‘  Guidon  de  la  Mer  ” was  composed 
in  the  century  next  succeeding.  The  sea  laws  of  Amalfi,  of  an  earlier  date, 
have  been  published  by  the  Italian  historian,  Troya,  under  the  title,  “ Capit- 
ula  et  Ordinationes  Maritime  Civitatis  Amaldtanai.”  Vienna,  1844. 

2.  Collections  of  Treaties. 

Dumont.  ” Corps  Universel  Diplomatique,”  etc.,  Amsterdam  and  the 
Hague,  1726-1731;  8 vols.,  folio,  most  of  them  in  two  parts.  A supplement 
to  this  work  in  5 vols.,  folio  (Amsterdam  and  the  Hague,  1739),  contains  a 
history  of  ancient  treaties  by  Barbeyrac  (vol.  i.),  a supjilementary  collection 
of  treaties  from  838  to  1738, — Dumont  having  ended  with  1731,  — by 
Ronsset  (vols.  ii.,  iii.),  and  a “diplomatic  ceremonial  of  the  courts  of  Enrojie” 
(vols.  iv.,  V.),  by  the  same  author.  Another  supplement  sometimes  accom- 
panving  Dumont’s  work  is  entitled  “ Histoire  des  Traites  de  Paix  et  Autres 
Negociations  du  XVID  Siecle,”  by  Jean-Yves  de  St.  Priest,  Amsterdam, 
1735,  2 vols.,  folio. 

AVenck  (F.  A.  G.).  “ Codex  Juris  Gentium  Recentissimi,”  Leipzig, 

3 vols.,  8vo,  1 781-1795.  This  embraces  a period  of  thirty-seven  years, 
1735-17  72,  and  continues  Dumont’s  work. 

1 AVarnkonif!:,  in  his  Flanclrische  Staats-und  Eechtsyeschichte,  vol.  i.,  Appendix, 
No.  XLI.,  gives  an  old  text  of  the  laws  of  Damm,  instead  of  the  modern  and 
worthless  one  of  Pardessus. 


APPENDIX  I. 


415 


De  Martens  (G.  F.).  “ Recueil  cles  Principaux  Traites  dc  Paix,  d’Alliance, 
etc.,  depuis  17G1  jiisqu’ti  nos  jours.”  The  “Recueil”  forms  8 volumes  and 
reaches  down  to  1808,  with  3 volumes  of  supplements.  (•2d  ed.  Gotting., 
1817-1835.)  The  “ Xouveau  Recueil,”  hy  the  same  editor,  continued  by 
his  nephew  Ch.  de  Martens,  by  Saalfeld  and  Murhard,  is  in  16  vols.,  some 
of  wliich  are  in  several  parts,  so  as  to  make  20  vols.,  and  reaches  from  1808 
to  1839.  The  ‘‘Nouveau  Recueil  General,”  edited  by  Murhard,  and  from 
the  14th  vol.  by  Samwer  and  Hopf,  consists  thus  far  of  20  vols.  The  first 
part  of  vol.  .x.x.  reaches  into  1875.  The  “ Nouveaux  Supplemens  ” by 
Murhard,  in  3 vols.,  supply  what  is  deficient  down  to  1839.  A register  in 
two  parts,  entitled  ‘‘Table  Generale  du  Recueil  des  Traites  de  G.  F.  de 
Martens,”  accompanies  this  work,  and  covers  the  period  down  to  1839. 
(.All  the  volumes  have  been  published  at  Gottingen  in  various  years.) 

Schmauss  (J.  J.).  ‘‘  Corpus  Jui’is  Gentium  Academicum  (1G9G-1  731).” 
Leipzig,  1730,  2 vols.,  8vo. 

Leibnitz.  “ Code.x  Juris  Gentium  Dijilomaticus,”  and  “ Mantissa  Codicis 
Juris  Gentium  Diplomatici.”  Containing  not  only  treaties,  but  various 
other  documents.  1693,  1700,  Hanover. 

Ch.  dc  iMartens  et  J.  de  Cussy.  “ Recueil  Manuel  et  Pratique  des  Traites. 
Conventions,”  etc.  Of  this  selection,  which  is  intended  to  embrace  the 
treaties  on  which  the  relations  of  the  world  since  1760  are  based,  7 vols. 
had  appeared  in  1857. 

Most  civilized  nations  have  special  collections  of  their  own  diplomatic 
transactions.  AVe  name  a few:  — 

Leonard.  ‘‘  Recueil  des  Traites,  etc.,  faits  par  les  Rois  de  France,  de- 
puis pres  de  Trois  Siecles,”  Paris,  1693,  6 vols.,  4to. 

Rymer.  “ Archiva  Regia  reserata,  sive  Foedera,  etc.,  inter'  Reges  Anglise 
et  alios  quosvis  ab  ineunte  Sajculo  Xllmo.  ” Lond.  1703-1735,  20  vols., 
folio.  The  later  volumes  were  prepared  by  Robert  Sanderson. 

‘‘  Collection  of  all  the  Treaties  of  Peace  between  Great  Britain  and  other 
Powers,  from  1648  till  1771,”  London,  1772.  A second  cd.,  by  Ch.  Jenkin- 
soii,  afterwards  Earl  of  Liverpool,  in  3 vols.,  carries  them  down  to  1784. 

Chalmers.  ‘‘  A Collection  of  Maritime  Treaties  of  Great  Britain  and 
other  Powers,”  London,  1790,  2 vols.,  8vo. 

Liinig  (J.  C.).  ‘‘Teutsches  Relchs-Archiv,”  Leipzig,  1710-1722,  24 
vols.,  folio. 

‘‘  Colleccion  de  los  Tratados  dc  Paz,  Alianza,  etc.,”  by  D.  Jos.  Ant.  de 
Abreii  y Bertonado,  Madrid,  1740-1752,  12  vols.,  folio. 

Cantillo.  ‘‘ Tratados  de  Paz  y de  Comercio,”  IMadrid,  1843. 

Liinig  (J.  C.).  “ Codex  Italim  Diplomaticus,”  Frankf.  and  Leipz. , 1725- 
1 735.  4 vols.,  folio. 

Elliott  (J.).  ” American  Diplomatic  Code,  containing  Treaties  of  the 

United  States  between  1778  and  1834,  ” AVashington,  1834. 

The  seventh  volume  of  ‘‘Public  Statutes  at  Large  of  the  United  States 


416 


APPENDIX  I. 


of  vVmerica,”  edited  by  R.  Peters,  Boston,  1848,  contains,  in  two  parts, 
treaties  witli  foreign  states  and  Indian  tribes.  (Vols.  vii.  and  viii.,  new  ed.) 

Kliiber  (J.  Ij.).  “ Acten  des  Wiener  Congresses,  in  den  Jabren  1814 

iind  1815,”  Erlangen,  1815-1816,  6 vols.,  8vo. 

Gliillany  (F.  G.).  “ Diploniatiselies  Handbucli,”  Nbrdlingen,  1855  to 

1868,  3 vols.  Also  in  French,  Paris  and  Brussels,  1856.  A brief  selection, 
omitting  a number  of  the  most  important  treaties. 

3.  Diplomatic  History. 

The  Abbe  de  Mably.  “ Droit  Public  de  I’Europe  Fonde  sur  les  Traites,” 
Paris,  1717,  2 vols.  Often  reprinted,  as  in  his  Works  (Paris,  1821,  15 
vols.). 

Koch.  “ Abrege  de  ITIistoirc  des  Traite's  de  Paix,”  etc.,  Bale,  17D6- 
1797,  4 vols.  Recast  by  Scholl,  Paris,  1817-1818,  in  15  vols. 

Flassan.  “ Histoire  Generale  et  Raisonnee  de  la  Diplomatic  Fran9aise,” 
Paris  et  Strasbourg,  2d  ed.,  1811.  The  same  author  published  a His- 
tory of  the  Congress  of  Vienna  at  Paris,  in  1829. 

“ Histoire  des  Traites  de  Pai.x,”  etc.,  by  the  Comte  do  Garden.  Four- 
teen volumes  appeared  without  indication  of  year  before  1859,  and  reach 
down  from  the  peace  of  Westphalia  to  the  peace  of  Paris  in  1814.  This  is 
a revival  of  the  works  of  Koch  and  Scholl.  Sec  Mold’s  critique  on  this 
work  (u.  s.,  p.  345),  who  is  of  opinion  that  De  Garden’s  own  labors  in  this 
work  are  of  but  little  importance. 

Spalding  (h  ).  “ The  Diplomacy  of  the  United  States.  Being  an  Ac- 

count of  the  Foreign  Relations  of  the  Country.”  Boston,  1826. 

Mignet.  “Negotiations  Relatives  a la  Succession  d’Espagne  sous  Louis 
XIV..”  Paris,  1835-1842,  4 vols.,  4to. 

Other  works  on  the  history  of  diplomacy  arc  mentioned  and  characterized 
by  Von  Mold  (u.  s.).  Here  also  tlie  published  correspondence  of  statesmen 
and  ambassadors,  and  the  works  of  the  ablest  historians,  are  great  helps. 
Here  is  the  place  to  name  collections  of  documents,  which  are  often  of  great 
value  in  illustrating  the  progress  of  negotiations.  Of  this  kind  are  the 
Briti.sh  and  foreign  state  papers,  of  which  twenty-four  volumes  had  ap- 
peared in  various  years  down  to  1853  ; the  Parliamentary  papers  of  various 
years  ; the  “ Portfolio,”  6 vols.,  1836-1837;  “ Di[)lomatic  Correspondence 
of  the  American  Revolution,”  by  J.  Sparks,  Boston,  1829-1830,  12  vols.; 
“Diplomatic  Correspondence  of  the  United  States  from  1783  to  1789,” 
Boston,  1838,  7 vols. 

C.  TREATISKS  ON  THE  LAW  OF  NATIONS  OR  ON  TITLES  OF  IT. 

(1.)  Among  the  forerunners  of  Grotius  maybe  named  Oldendorp,  pro- 
fessor at  Marburg.  Isagoge,  sen  Elementaria  Introductio  Juris  Naturae, 
Gentium  et  Civilis,”  Cologne,  1539. 

Suarez,  a learned  Spaniard,  professor  at  Alcala,  Salamanca,  etc.  (1548- 
1617).  “ Dc  Legibus  et  Deo  Legislator!. ” 


APPENDIX  I. 


417 


Francis  a Victoria,  professor  at  Salamanca.  In  his  “ Rdectiones  Theo- 
logicse,”  ])iibli.-he(l  at  Lyons,  1557,  the  sixth  part  is  eniitled  ‘‘  Dc  Jure 
Belli.”  See  Ilallam’s  “Introd.”  ii , 242,  and  Wlnaitoa’s  *•  Hht  ,”  ]>p.  35-43. 

Ballliazar  Ayala,  a Spaniard,  judge  advocate  of  the  S[)  uii'h  army  in  the 
Netlierlands.  “ De  Jure  et  Olticiis  Bellicis  et  Discipliiia  Libia  Ti-es,” 
Antwerp,  15D7.  Comp.  Hallam,  ii.,  244,  and  Wheaton,  u.  s.,  43-49.  The 
following  passage,  cited  by  Hallam  from  tliis  scarce  work,  speaks  well  for 
Ayala's  soundness  of  thinking:  “ Bellum  adversus  inlidelcs,  c.x  eo  solum 
quod  infideles  sunt,  ne  quidem  auctoritate  imperatoris  vcl  suinmi  pontificis 
indici  potest;  infidelitas  enim  non  privat  infidides  dominio  quod  habent  jure 
gentium;  nam  non  fidelibus  tantum  rerum  dominia,  sed  omni  rationabili 
creaturaj  data  sunt.” 

Albericus  Gentilis  (I551-1G11),  son  of  an  Italian  who  left  his  country 
upon  embracing  Protestantism.  The  son  became  jtrofessor  of  ei\  il  law  at 
0.xford,  in  1582,  and  published  in  the  next  year  a treatise  “ De  Lo'yation- 
ibus  ” — the  first  work,  it  is  said,  specially  devoted  to  the  riihts  of  ambas- 
sadors. In  1588  came  out  at  O.xford  his  work  “ De  .lure  Belli,”  and  still 
another  is  imputed  to  him  by  Oinpteda,  entitleil  “ De  Jure  IMaris.”  Of 
Geniilis,  Groliiis  says,  in  his  Prolegomena,  § 38,  “ cujus  diligentia  sicut  alios 
adjuvari  posse  scio  et  me  adjntum  profiteor.”  A new  edition  of  his  work 
ajipeared  in  1878  under  the  care  of  Professor  Holland,  of  Oxford. 

Benedict  AVinckler  (f  1G48),  jwofessor  of  law  at  Lei[)zig,  then  syndic  of 
Lubeck.  “ Principiorum  Juris  Libri  Tres,”  Leipzig,  1615. 

For  the  predecessors  of  Grotius  in  general,  compare  Von  Kaltenborn, 
“Die  Vorlaiifer  des  Hugo  Grotius,”  Halle,  1848. 

(2.)  Grotius  and  subsequent  writers  down  to  Moser. 

lingo  Grotius,  or  De  Groot  (1583-1645).  After  filling  important  ofTices 
in  Holland,  Grotius  was  involved  in  the  strife  between  Maurice  of  Orange, 
the  Stadtholder,  and  the  Grand  Pensionary  of  Holland,  Oldenbarnevelil. 
When  the  latter  was  beheaded,  Grotius  was  condemned  to  perpetual  im- 
prisonment, with  confiscation  of  his  goods,  in  1619,  but  by  a successful 
stratagem  of  his  wife  escaped  from  his  confinement  in  1621.  The  next  ten 
years  he  spent  in  learned  leisure  in  France,  and  the  rest  of  his  life  in  the 
service  of  Sweden,  for  a large  part  of  the  time  as  ambassador  at  the  French 
court.  Grotius  was  ctjually  eminent  in  classical  scholarship,  biblical  criti- 
rism,  the  defense  of  the  truth  of  revelation,  and  the  law  of  nations.  He 
wrote  also  on  history,  law,  and  theology.  During  his  exile  in  France  was 
composed  and  published  his  work  entitled,  “ De  .lure  Belli  et  Pacis  Libri 
Tres,  in  (piibiis  jus  naturm  et  gentium,  item  juris  ]uiblici  firseeipua  explican- 
tnr.”  The  first  edition  was  publisheil  at  Paris,  1625.  Of  the  nnmlicrless 
editions  which  have  since  appeared,  are  deserving  of  mention,  (1  ) That 
jmblished  at  Amsterdam  in  1 720,  in  2 vols.,  with  the  notes  of  Grotius,  J.  F. 
Gronovius,  and  of  the.  editor,  J.  Baybeyrac,  a quofessor  at  Gryningen. 

27 


418 


APPENDIX  I. 


(2.)  “ II.  G rolii,  etc.,  cum  Commentnriis  Ilenr.  Libcii  Baronis  de  Cocccji, 
mine  .ml  calcem  cujuf-qnc  capitis  adjcctis,  inscriis  quoque  observatioiiiljiis 
Sam.  Bill.  Bar.  de  Cocccji,”  Lausanne,  1 7.5  1 , 5 vols.,  4lo.  These  coniuien- 
taries  had  been  jniblished  before  by  ihemsclvcs.  The  text  with  an  abridged 
translation  and  notes  was  published  in  1853,  at  Cambridge,  by  Di’.  W'lie- 
well.  An  excellent  estimate  of  the  work  of  Grotiiis  may  be  found  in 
Hartenstein’s  “ Darstellung  der  Rechtsphilosophie  des  H.  Grotius,”  in  the 
first  volume  of  the  transactions  of  the  philological  and  historical  class  of 
the  royal  Saxon  Academy,  Leipzig,  1850. 

In  some  editions  of  the  works  of  Grotius,  as  in  Barbcyrnc’s,  there  is  an- 
nexed a short  treatise  of  his  written  in  ] 009,  and  entitled  ‘‘Mare  Libe- 
rum.” In  reply,  the  most  learned  Englishman  of  his  time,  John  Selden, 
published  his  ‘‘Mare  Clausum”  (1035),  in  vindication  of  the  claims  of 
Great  Britain  to  sovereignty  over  the  seas  which  surround  the  British 
islands. 

Zoiicli  (1590-1000),  professor  of  civil  law  at  Oxford,  and  Judge  of  the 
High  Court  of  Admiralty.  “Juris  et  Judicii  Eecialis,  sive  Juris  inter 
Gentes  et  Quaestionum  de  eodem  Explicatio.”  Oxford,  1050.  Comp. 
Wheaton,  “ Hist.,”  pj).  100-103,  and  the  table  of  contents  in  Omptedti,  1, 

§ GL 

Samuel  von  Puffendorf,  or  Pufendorf  (1031  or  1032-1094),  professor  at 
Heidelberg  of  the  law  of  nature  and  nations  (1001),  then  at  Lund  in  Swe- 
den (1070)  historiographer  of  the  king  of  Sweden,  and  one  of  his  council 
(1080),  privy  councillor  of  the  Elector  of  Brandenburg  (1088).  His  works 
which  concerns  us  are,  — 

(1.)  “Elementorum  Jurisprudentia;  Universalis  Libri  Duo,”  the  Hague, 
1000,  a work  of  his  youth.  In  this  work,  says  Ompteda,  he  has  the  same 
course  of  thought  which  appeared  in  his  later  works.  The  natural  jus 
gentium  is  included  in  the  wider  science  of  jus  nalur®,  and  requires  no 
special  elaboration.  Besides  this  there  is  no  voluntary  or  positive  law  of 
nations,  since  tho.se  usages  which  nations  extensively  observe  in  regard  to 
war  carry  no  binding  force  with  them,  and  by  their  violation  no  duties, 
properly  so  called,  are  violated.  The  inviolability  of  ambassadors,  and 
their  other  privileges,  are  derived,  partly  from  the  general  law  of  nature, 
partly  from  the  free  act  and  policy  of  the  nation  accepting  the  ambassador, 
and  can  be  refused  at  the  pleasure  of  such  nation  without  injury  to  the  am- 
bassador’s sovereign. 

(2.)  “ De  Jure  Natur®  et  Gentium  Libri  Octo,”  Lund,  1672,  and  often. 
This  is  his  principal  work.  A French  translation,  with  notes,  by  Barbey- 
rac,  appeared  at  Amsterdam  in  170G,  and  an  English  translation  in  1717. 

(3.)  “ De  Officiis  Hominis  et  Givis,”  16  73.  This  is  a mere  extract  from 
No.  2.  Comp.  Wheaton,  88-99.  Leibnitz  said  of  Puffendorf  that  he  was 
“ vir  parum  juris  consultus  et  minime  philosophus. ” Too  high  a rank  is 
given  to  him  by  Sir  James  Mackintosh,  in  his  discourse  on  the  law  of  na- 
ture and  nations. 


APPENDIX  I. 


419 


Samuel  Rachel  (1628-1691).  professor  first  at  Helmstadt.  then  at  Kiel. 
“ De  Jure  NatiircB  et  Gentium  Dissertationes  Duo,’’  Kiel,  1676.  'Ihis 
work  is  remarkaljle  as  oppo-ing  the  views  of  Pulfemlorf.  and  as  giving  rise 
to  a eoiiti'over.sy  between  two  sects  of  Geianan  juri'ts  towards  the  close  of 
the  seveiiteenlh  century.  “The  one  sect,”  says  Dr.  Wheaton  (|).  103), 
“ adhering  to  Pnft’enilorf,  denied  tlie  e.xistence  of  atty  other  law  of  nations 
than  the  law  of  nature,  applied  to  independent  coimnunities  ; whilst  the 
latter  adopted  the  doctrine  of  Rachel,  founding  the  law  of  nations  upon  the 
law  of  nature,  as  modified  by  usage  and  express  compact.”  Rachel’s  def- 
inition of  the  law  of  nations  is  “jus  phtrium  liberarum  gentittm,  pacto  sive 
placito  expresse  aut  tacite  initum,  quo  utilitalis  gratia,  sibi  invicem  obli- 
gantur.”  For  an  analysis  of  his  work  see  Oinpteda,  § 74. 

J.  W.  Textor,  professor  of  law  at  Altorf,  then  at  Heidelberg  (1637- 
1701).  “ Synopsis  Juris  Gentium,”  Bale,  1680.  He  embraced  Rachel’s 

views. 

Christian  Thomasius  (1655-1728)  taught  at  Leipzig,  then  in  1694  be- 
came a professor  in  the  new  univeivity  of  Halle.  “ Fundamenta  Juris 
Naturm  et  Gentium.”  Halle,  1705  (1st,  ed.).  A learned  and  inllueiitial 
defender  of  the  views  of  Puffendorf. 

Adam  F.  Glafey  (1682-1754),  keeper  of  the  Archives  at  Dresden. 
“ Vernunft  und  Vblkerrecht,”  Frankfurt,  1723. 

Christian  Von  Wolf  (1679-1  754),  one  of  the  most  noted  jdiilosophers  of 
his  day,  professor  at  Halle  in  1706,  dismissed  from  his  place  by  the  king  of 
Prussia  on  account  of  the  theological  odium  excited  against  him,  then  at 
Marburg,  and  from  1740  onward  again  at  Halle,  being  restored  to  favor. 
He  wrote  a .system  of  the  law  of  nature  in  nine  large  quartos,  of  which  the 
last  volume  treats  of  the  law  of  nations  ; and  also  in  1749,  when  he  was 
seventy  yemrs  oil!,  published  his  “Jus  Gentium  Methodo  Scientifica  Per- 
tractatum,  in  quo  jus  gentium  natnrale,  ab  eo  quod  vohmtarii,  pactitii  et 
consuetudinarii  est,  accurate  distinguitur,”  Halle,  1749.  Of  this  his  “ In- 
stitutiones  Juris  Naturm  et  Gentium,”  Halle,  1750,  translated  also  into 
German  and  French,  is  an  abridgment.  “It  is  not  easy,”  says  Wheaton, 
“to  infer  from  the  title  of  the  former  work  precisely  what  the  autlior  un- 
derstood to  be  comprehended  under  the  term  voluntorij  law  of  nations,  as 
distinguished  fi-om  the  conreniional  and  citslornarij  law  of  nations.  Grotius 
had  used  the,  tevm  Jus  f/'^ulium  voUintarium  in  a comprehensive  sense,  as  in- 
cluding all  tho.'c  foundations  of  international  law  which  could  not  properly 
be  referred  to  the  law*of  nature,  but  depended  upon  the  voluntary  consent 
of  all  or  many  nations.”  In  his  Prolegomena,  IV’olf  says  that  “the  volun- 
tary law  of  nations  derives  its  force  from  the  presumed  consent  of  nations, 
the  conventional  from  their  express  consent  ; and  the  consuetu  liiiary  from 
their  tiicil  consent.”  This  presumed  consent  lie  derives  from  the  fiction  of 
a natural  coinmoinvealth  to  which  all  nations  belong,  governed  by  laws 
which  are  modifications  of  natural  law,  fitted  for  such  a society  of  nations, 


420 


APPENDIX  I. 


and  arc  obliojntoiy  on  eacli  member  as  tbe  laws  of  a state  are  on  its  in  li- 
vidual  members.  He  barely  assumes  the  c.\istence  of  such  a eomniDiiwealth 
of  nations,  and  does  not  show  how  or  when  the  nations  of  the  world  be- 
came ihns  united.  Wolf,  adds  Wheaton,  supposes  himself  to  differ  from 
Grotius  as  to  a voluntary  taw  of  nations,  in  two  particulars.  The  first  is, 
that  Grotius  regards  it  as  a ))Ositive  law,  obligatory  on  account  of  the  gen- 
eral consent  of  the  nations  or  of  certain  nations,  while  IV’olf  considers  it  to 
be  a law  imposed  by  nature,  to  which  no  nation  may  refuse  its  assent. 
'J'he  second,  that  Grotius  confounds  the  voluntary  with  the  customary  law 
of  nations,  whereas  the  former  is  of  universal  obligation,  while  the  latter 
j)revail.s  between  particular  nations,  having  been  established  by  tacit  con- 
sent. (Comp.  Wheaton,  17G-183.)  AV'^olf’s  works  have  become  obsolete 
with  his  jdiilosophy,  but  his  materials  have  been  worked  over  by  a disciple, 
Emmerich  de  Vattel  (1  714-1 7G7),  a Swiss,  who  for  inan}^  years  was  in 
the  service  of  the  Saxon  court,  and  pid)lished  at  Leyden,  in  1758,  “ Le 
Droit  des  Gens,  ou  Piinci]ies  de  la  Loi  Natnrelle  appliques  a la  Conduita 
des  Nations  et  des  Soiiverains.”  This  work,  on  account  of  its  clearness 
and  smoothness,  has  long  been  a favorite  with  statesmen,  and  has  been 
tr.inslated  into  the  principal  languages  of  Europe.  The  best  edition  of  it  is 
that  ]mblished  at  Paris  in  1838,  with  notes  by  Pinheiio-Ferrcira. 

De  Ileal.  “ La  Science  dn  Gouverneinent.”  Pai'is,  1754  and  17G4.  In 
eiibt  volumes,  the  fifth  of  w liich  contains  the  law  of  nations. 

J.  G.  llcineccius  (IG81-1741),  professor  at  Halle,  etc.  “ Elementa  Juris 
Natnra;  ct  Gentium.”  Halle,  1 738,  translated  into  English,  1742,  by  G. 
Turnbull.  He  understands  by  jus  gentium,  says  Onqiteila,  the  rights  which 
find  their  application  to  societies  of  every  sort,  and  treats  only  in  a cursory 
way  of  the  rights  of  nations.  Another  work  of  his  was  a ” Dissertation  de 
Na\  ibus  ob  IMercinm  lllicitarum  Vecturam  Commissis  ” (Halle,  1721  and 
1740  );  also  translated  into  German  and  Dutch. 

J.  J.  Hurlamaqui,  professor  of  law  in  Geneva,  and  member  of  the  council 
there  (1G94-1748).  “ Principes  du  Droit  Naturel.”  Geneva,  1747. 

Ti’anslated  also  into  English. 

Thomas  Ilutherforth,  professor  at  Cambridge,  archdeacon  of  Essex. 
” Institutes  of  Natural  Law,”  London,  1754. 

Cornelius  von  Bynker.shock  (1G73-1  743),  member  and  president  of  the 
sniireme  court  of  Holland.  He  has  written  no  systematic  work,  hut  the 
following  dissertations,  contained  in  the  second  volume  of  his  ‘‘  Opera 
Omnia”  (la'i-den,  17iI7),  “ De  Dominio  iMaris  ” (1  702),  “ De  Foro  Le- 
gatornin  ” (1721),  and  “ Quaestioues  Juris  Publici  ” (1  737),  place  him 
amoivj;  the  highest  authorities. 

Charles  .fenkinson,  afterwards  Lord  Liverpool.  “ Discourse  on  the  Con- 
duct of  the  Go\crnment  of  Great  Britain  in  respect  to  Neutral  Nations,” 
1 757.  This  ridates  to  the  ” rule  of  175G,”  so  called.  Comp.  § 200. 

Martin  ililbner.  ” De  la  Saisie  des  Batimeus  Neutres,”  etc.  (The 


appendix  I. 


421 


Hague,  1 759,  2 vols.)  For  a critique  on  this  work,  compare  Wheato,, 
“History,”  219-220. 

(3.)  Moser  and  writers  since  liis  day,  until  about  the  year  1860.  From 
this  time  the  positive  and  practical  tendency  has  prevailed. — in  some 
writers  to  the  neglect  of  the  principles  of  general  justice. 

1.  Systematic  Works. 

John  Jacob  Moser  (1701-1786),  professor  at  Tubingen,  then  at  Frank- 
fort-on-the-Oder,  founder  in  1749  of  an  academy  for  the  political  instruc- 
tion of  young  nobles,  then  in  the  service  of  the  estates  of  Wiirtemberg, 
during  which  employment  he  was  imprisoned  by  the  Duke  and  kept  in  con- 
finement five  years.  A most  voluminous  publicist,  thorougbly  practical,  with 
no  great  de|)tli  or  philosophical  power,  the  father  of  the  positive  method. 
For  an  estimate  of  this  excellent  man,  see  Yon  Mold,  “ Gesch.,”  ii.,  402. 
His  principrJ  works  are  “ Versuch  des  Neuesten  Europiiischen  Volkerrechts 
in  Friedens-und-Kriegszeiten,”  etc.,  Frankfurt  am  Mayn,  1777-1780,  in 
twelve  parts;  “Beytriige  zu  dem  Neuesten  Europaischen  Volkerrechts  in 
Friedenszeiten,”  and  the  same  in  Kriegszeiten.  Tubingen,  1778-1781. 
These  two  works  are  unfinished. 

Giinthcr  (C.  G.).  “ Grundriss  eines  Europ.  Volkerrechts,  nach  Vernunft, 
Vertriigen,  Herkommen,”  etc.,  Ratisbon,  1779,  8vo. 

Geo.  Fred,  de  Martens  (1756-1821).  Professor  at  Gottingen,  from  1808 
in  the  service  of  the  king  of  Westphalia,  and  then  in  that  of  Hanover.  Of 
his  numerous  works  two  have  already  been  mentioned.  Another  is  entitled 
“ Precis  du  Droit  des  Gens  Moderne  de  I’Europe,  fonde  sur  les  Trait^s  et 
rUsace,”  Gottinguc,  1789,  transl.  into  German  by  the  author,  1796,  and 
into  English  by  W.  Cobbett,  Philadelphia,  1795.  The  fourth  edition  in 
French  appeared  at  Paris,  1831,  in  2 vols.,  with  notes  by  Pinheiro-Ferreira, 
who  opposes  the  extreme  positivism  of  De  Martens  and  others.  A fifth 
edition  in  French,  with  notes  by  Pinheiro-Ferreira  and  Verge,  appeared  in 
1855,  and  has  been  used  for  the  present  work. 

Gerard  de  Rayneval  (1736-1812).  “ Institution  du  Droit  de  la  Nature 

ct  des  Gens,”  etc.,  Paris,  1803,  in  1 vol.,  1851,  in  2 vols. 

Fried.  Saalfeld.  “ Ilandbuch  des  Positiven  Volkerrechts.”  Tubinfren, 
1833. 

J.  L.  Kliiber  (1762-1835),  professor  at  Erlangen,  then  at  Heidelberg 
“Droit  des  Gens  Moderne  de  I’Europe,”  Stuttgart,  1819,  and  in  German 
as  “ Eiiropaisehes  Volkerrecht,”  nearly  at  the  same  time.  The  Fi'encb 
work  was  reprinted  in  1831,  and  the  German,  with  notes  by  Morstadt,  aC 
Schaffhansen,  in  1851.  Compare  what  IManning  says  of  this  work,  p.  41  oi 
his  Commentaries.  He  also,  besides  publishing  the  acts  of  the  Congress  of 
Vienna,  wrote  a work  entitled  “ Offentliches  Recht  des  Deutschen  Bimdes 
und  der  Bundesstaaten,”  of  which  editions  appeared  in  1817,  1822,  1833. 


422 


APPENDIX  I. 


Jul.  Sclimelzing.  “ Systeniatischer  Grundriss  dcs  Praktisclieu  Europ. 
Vdlkerreclits,”  lludolstadt,  1818-1819,  3 vols. 

Tlieod.  Scliinalz  (17G0-1831).  “ Europ.  Ydlkerreclit,”  Berlin,  1817. 

C.  S.  Zacbaria;  (1 7G9-1843)..  “ Yierzig  Biicher  voin  Staate,”  revised 
ed.,  Heidelberg,  1841,  in  7 vols.  A^ol.  v.  contains  bis  A^blkerrecbt.” 

Jeremy  Bentbani  (1749-1832).  In  vol.  viii.  of  bis  ^vorks,  publisbed  in. 
1839,  occur  several  fragments  on  international  law,  serving  as  an  outline  of 
tbe  science,  in  wbicb  be  advocates  bringing  it  into  tbe  form  of  a code  and 
a common  congress  for  tbe  adjustment  of  differences  between  states.  See 
Wbeaton’s  critique  (“Hist.,”  pp.  328-344),  and  comp.  § 22G,  supra. 

James  Kent  (1 7G3-1847),  Judge  of  tbe  Supreme  Court  and  Cbancellor 
of  tbe  State  of  New  York,  then  professor  of  law  in  Columbia  College,  city 
of  New  York.  His  nine  lectures  on  tbe  law  of  nations  form  tbe  first  part  of 
bis  “ Commentaries  on  American  Law,”  wbicb  appeared  first  in  182G,  and 
following  years,  and  in  repeated  editions  since. 

Henry  AVbeaton  (1785-1848),  reporter  of  decisions  of  tbe  Supreme  Court 
of  tbe  United  States,  from  1827,  for  many  years  representing  tbe  United 
States  at  tbe  courts  of  Copenbagen  and  Berlin.  His  “ Elements  of  Inter- 
national Law  ” appeared  first  in  183G,  at  London  and  New  York,  in  an 
enlarged  third  edition  in  184G,  in  a si.\tb  in  1855,  and  a seventb  in  18G8, 
witb  notes  by  AY.  B.  Lawrence.  An  cigbtb  appeared  in  18G6,  with  elaborate 
notes  by  R.  H.  Dana,  Jr.  Tins  is  one  of  tbe  standard  works  in  our  lan- 
guage. Dr.  AVbeaton’s  definition  of  international  law  makes  it  to  consist  of 
“those  rules  of  conduct  wbicb  reason  deduces,  as  consonant  to  justice,  from 
the  nature  of  tbe  society  existing  among  independent  nations;  witb  such 
definitions  and  modifications  as  may  be  established  by  general  consent.” 
This  definition  removes  tbe  science  from  the  nakedly  positive  ground,  and 
gives  full  scope  to  comparisons  between  tbe  existing  law  and  tbe  standard 
of  justice. 

AVilliam  Oke  Manning.  “Commentaries  on  tbe  Law  of  Nations,”  Lon- 
don, 1839.  This  work  is  full  on  certain  topics  connected  witb  maritime  war, 
especially  on  the  rights  of  neutrals,  but  omits  other  topics  of  importance,  as 
tbe  rights  of  ambassadors.  A second  edition  appeared  in  187G. 

August  W.  Ileffter,  professor  at  Bonn,  and  then  at  Berlin.  “ Das  Euro- 
piiiscbe  A'dlkerrecbt  der  Gegenwart,”  Berlin,  1844,  where  also  tbe  si.xtb 
edition  of  1873  appeared.  This  work  has  higher  authority  in  Germany  than 
any  other  on  tbe  science  of  wbicb  it  treats. 

lliebard  Wildman  (Recorder  of  Nottingham).  “Institutes  of  Interna- 
tional Law,”  London,  1829,  2 vols. 

Pinbeiro-Ferreira.  “ Cours  de  Droit  Public  Interne  et  Externe,”  Paris, 
1830,  2 vols.  Tbe  first  part  of  vol.  ii.  treats  of  international  law.  A radi- 
cal writer,  who  exaggerates  tbe  rights  of  tbe  individual  and  tbe  individual 
state. 

J.  AI.  de  Pando.  “ Elementos  del  Dereebo  Internacional,”  Aladrid, 
1843,  4to. 


APPENDIX  I. 


423 


Poison.  “ Principles  of  tlie  Law  of  Nations,”  to  which  is  added  “Di- 
plomacy ” by  Thomas  H.  Horne.  2d  ed.,  London,  1854. 

llobert  Phillimorc,  at  one  time  i\I.  P.,  Queen’s  advocate  in  the  Admiralty 
Court,  judsi'e  of  the  Cinque  Ports,  etc.  “Commentaries  upon  International 
Law,”  3 vols.,  1854-1857,  rcprinteil  in  Philadelj)hia  : a fourth  volume  on 
“Private  International  Law  or  Comity”  appeared  in  London,  in  18C1.  A 
second  edition  appeared  in  1870-74.  This  work,  which  I had  not  the  use 
of,  while  prci)aring  my  first  edition,  is  the  most  e.xtensive  and  learned  work 
on  the  science  in  our  language,  if  not  in  any  language.  Compare  the  favor- 
able critique  of  Mold,  i.,  398.  It  has  been  his  object — the  raithor  says 
near  the  close  of  his  work  — “to  strengthen  or  add  to  the  previously  e.xist- 
• ing  proof  that  states,  as  well  as  individuals  of  which  they  are  the  aggre- 
gate, have  in  their  collective  capacity  a sphere  of  duty  assigned  to  them 
by  God.  He  has  endeavored  to  forward  the  great  argument  that  there  are 
international  rights  and  therefore  international  laws,  convinced  that  every 
work,  however  humble,  which  tends  to  procure  the  recognition  of  these 
laws,  — to  show  by  reason,  by  history,  by  authority,  that  the  interest  and 
duty  of  states  are  eventually  one,  — that  the  substitution  of  might  for  right 
brings  misery,  not  only  on  the  oppressed  but  on  the  oppressor,  — deserves 
an  indulgent  reception  from  the  world  to  which  it  is  addressed.” 

11.  AV.  Halleck,  late  major-general  in  the  service  of  the  United  States. 
“ International  Law;  or.  Rules  regulating  the  Intercourse  of  States  in  Peace 
and  AVar,”  San  Francisco,  18G1. 

Travers  Twiss  (Regius  Professor  of  Civil  Law  at  O.xford).  “ The  Law  of 
Nations,  considered  as  Independent  Political  Communities,”  O.xford  and 
London,  1861.  “ Rights  and  Duties  of  Nations  in  Time  of  AA^ar,”  London, 
1863. 

2.  Essays  and  Tracts 

On  separate  titles  of  the  law  of  nations. 

(n.)  On  ambassadors  and  consuls. 

Of  Albericus  Gentilis  and  of  Bynkershoek’s  treatise  “ De  Foro  Lega- 
torum  ” we  have  already  spoken. 

Of  works  before  the  modern  era  we  name  here  — 

Abraham  AVicquefort  (1598-1682),  “ L’.Ambassadeur  et  ses  Fonctions,” 
Cologne,  1679,  the  Hague,  1680,  1681.  The  fourth  edition  appeared  at 
Amsterdam,  in  1730,  in  two  volumes,  with  Bai'bcyrac’s  notes,  who  added 
other  pieces  of  AA'icquefort’s  and  a translation  of  Bynkershoek’s  above- 
named  work.  For  AA’icquefort  himself  comp.  Ompteda,  p.  511,  AA’heaton’s 
“ Hist.,”  234-246,  and  g 91  supra. 

Moser  (J.  J.)  “ Beitriige  zu  dem  Neuesten  Europaischen  Gesandschafts- 
rccht,”  Frankfurt,  1781. 

David  B.  AA^ardcn  (consul  of  the  United  States  at  Paris).  “ On  the 
Origin,  Nature,  Progress,  and  Influence  of  the  Consular  Establishments,” 
Paris,  1814,  and  in  French,  1815. 


424 


APPENDIX  I. 


A.  Minis.  “ Das  Europ.  Gesandtscliaftsreclit,”  Leipz.,  1847,  2 vols. 

Cli.  lie  Martens.  ‘‘  Guide  Dijilomatique,”  Paris,  4th  ed.,  1852.  Comp. 

§ 98,  svpra,  note. 

F.  de  Gussy.  “ Dietionnaire,  on  Mannel-lexique  du  Dijiloniate  ct  du 
Consul,  ’ Li  ipz.,  18-lG.  Also  by  the  same  author,  “ Peglemens  Consulaires 
de.s  Prineipau.x  Etats  Maritimes  de  I’Europe  et  de  P Am^riiiue,”  Leipz. 
and  Paris,  IS-II.  Also,  “ Phases  et  Causes  Celebres  du  Droit  Maritime  des 
Nations,”  Leipz.,  185G,  2 vols. 

Garden,  le  Comte  de.  '•  Traite  Complet  de  Diplomatie,  ou  Thdorie 
Generale  des  Relations  Exterieures  des  Puissances  de  I’Europe,”  3 vols., 
Paris,  1833. 

Alex,  de  Miltitz,  cliamberlain  of  the  king  of  Prussia,  formerly  ambassador 
at  Constantinople.  “ Manuel  des  Consuls,”  London  and  Berlin,  1837-1843, 
2 vols.,  the  second  in  two  large  parts.  One  of  the  most  learned  and  ex- 
haustive woi'ks  ever  written  on  any  braneli  of  the  law  of  nations. 

(5.)  On  private  international  law. 

Joseph  Story,  Judge  in  the  Stipreme  Court  of  the  United  States,  pro- 
fessor in  the  law  department  of  Harvard  University.  “ Commentaries  on 
the  Conllict  of  Laws,  Foreign  and  Domestic,”  Boston,  1834,  and  a num- 
ber of  eilitions  since.  Cotnp.  § 73. 

Foelix.  ” Traite  du  Droit  International  Prive,”  Paris,  1843.  A collec- 
tion of  articles  originally  published  in  the  author’s  “ Revue  de  Legisla- 
tion.” Third  ed.,  with  notes  by  Dutnangeat.  Paris,  1856,  2 vols. 

W.  Burge.  “ Cominentafies  on  Colonial  and  Foreign  Laws,  generally  and 
in  their  Conllict  with  one  another,  and  with  the  Law  of  England,”  London, 

1838,  4 vols. 

F.  C.  de  Savigny.  The  eighth  volume  of  his  “ System  des  Heutigen 
Rbtnischen  Rechts,”  Berlin,  1849. 

W.  Schaeffner.  ” Entwickelung  des  Internationalen  Privatrechts,” 
Frankfurt,  1811. 

]\L  II.  IMasse.  The  secbnd  volume  of  his  “ Droit  Commercial”  is  devoted 
to  this  subject. 

J.  Westlake.  ” A Treatise  on  Private  International  Law,”  London, 

1839. 

L.  Bar.  “ Das  Internationale  Privat-und-Strafreeht,”  Hanover,  1862. 

F.  'Wharton.  “ Conflict  of  Laws,”  Philadelphia,  1873. 

C.  Brocher.  “ Nouveau  Traite  de  Droit  Internat.  Prive,”  Geneva,  1876. 

The  older  writers  may  be  found  enumerated  in  Savigny,  vol.  viii.,  p.  9, 
and  at  the  end  of  the  work  of  Foelix.  The  more  recent,  down  to  1855, 
are  classified  and  subject  to  a criticism  by  Mohl,  i.,  441-454. 

(c.)  Property  of  states,  sovereignty  over  seas  and  rivers. 

Eug.  Ortolan.  “ Des  IMoyens  d’acquerir  le  Domaine  International,”  etc. 
Paris,  1851.  Comp.  Mohl,  i.,  419. 

B.  D.  H.  Tellgen.  “ Disputatio  de  Jure  in  Mare  Imprimis  Proximum,’ 
Groningen,  1847. 


APPENDIX  I. 


425 


Cremervan  dem  Bergh.  “Historia  Novarum  Legum  de  Fluminum  Com- 
munium  Navigatione,”  Leyden,  1835. 

Van  Hoorn.  Dissertatio  de  Navigatione  et  Mercatura  in  Mari  Nigro,” 
Anisterilain,  1834. 

((/.)  Maritime  law,  rights  of  neutrals,  capture,  etc. 

11.  .J.  Valin.  “Nouveau  Commentaire  sur  I’Ordonnance  de  la  Marine 
du  Mois  d’Avril.  1681,”  etc.,  llochelle.  1762,  2 vols.,  4to.  Third  ed.,  Paris 
and  Marseilles,  1780.  Also  “ Traitd  des  Prises,  ou  Principes  de  la  Juris- 
prudence Francois  concernant  les  Prises  qui  se  font  sur  la  Mer,”  llochelle 
and  Paris,  1782,  2 vols.,  8vo. 

G.  M.  Lampredi.  “ Del  Commercio  dei  Popoli  Neutrali  in  Tempo  di 
Guerra,”  Florence,  1788,  2 vols. 

Domenico  A.  Azuni.  “ Sistema  Universale  del  Pi  ineipii  del  Diritto 
Maritimo  dell’ Europa,”  Florence,  1795,  2 vols.  A French  translation  hy 
the  author  appeared  at  Paris,  1805,  in  2 vols.,  8vo,  under  the  title  “Droit 
Maritime  de  P Europe,”  and  another  by  J M.  Dige'on,  at  Paris,  in  the 
year  VI.  under  the  title  “ Systeme  Universel  des  Principes  du  Droit  Mar- 
itime de  I’Europe.”  The  work  has  had  also  a Sjtanish  and  an  English 
translation. 

Fred.  J.  J.acobsen.  “ Handbuch  liber  das  Praktische  Seerecht  der  Eng- 
liinder  und  Franzosen,”  etc.,  Altona,  1804,  1805,  2 vols.  Also  “ Seerecht 
des  Friedens  und  des  Krieges,  in  Bezug  anf  die  Kauffahrteischiffahrt,” 
Altona,  1815. 

Lucchesi-Palli  (Count  Ferdinand).  “ Principil  di  Diritto  Publico,”  etc., 
Na])lcs,  1840.  Also  translated  into  French  by  A.  de  Galiani,  Paris,  1842. 

Theodore  Ortolan.  “ Regies  Internationales  et  Diplomatic  de  la  Mer,” 
Paris,  1845;  third  ed.,  ibid.,  1856. 

Masse,  ^I.  G.  “ Lc  Droit  Commercial  dans  ses  Rapports  avec  les  Droits 
des  Gens,”  6 vols.,  Paris,  1844  and  onward,  ed.  2,  1865.  The  first  volume 
treats  of  the  rights  of  trade.  Comp.  Mold,  i.,  423. 

J.  Reddie.  “ Researches,  Historical  and  Critical,  in  Maritime  Interna- 
tional Law,”  Edinburgh,  1844,  2 vols.  “ Law  of  Maritime  Commerce,” 
London,  1841. 

C.  von  Kaltenborn.  “ Grundsatze  des  Praktischen  Europaischen  See- 
rechts,”  Berlin,  1851,  2 vols. 

L.  B.  Hautefeuille.  “Des  Droits  et  des  Devoirs  des  Nations  Neutres  en 
Temps  de  Guerre  Maritime,”  Paris,  1818.  The  2d  edition,  in  3 vols.,  re- 
vised and  modified  according  to  the  treaty  of  Paris  of  1856,  appeared  in 
1858.  An  important  work. 

W.  Hazlilt  and  R.  Roche.  “ A Manual  of  Maritime  Warfare  embody- 
ing the  Decisions  of  Lord  Stowell,”  London,  1854. 

H.  Byerly  Thomson.  “ The  Laws  of  War  affecting  Commerce  and  Ship- 
ping,” London,  1854. 

Lock,  W.  A.  “ A Practical  Legal  Guide  for  Sailors  and  Merchants  dur- 
ing War.”  Same  place  and  year. 


426 


APPENDIX  I. 


Hosack.  “ The  Rights  of  British  and  Neutral  Commerce,  as  affected 
by  Recent  Royal  Declarations.”  Same  place  and  year.  For  an  estimate 
of  these  four  English  works,  see  Mold,  i.,  424. 

C.  F.  AVurm.  *•  A^on  der  Neutralitat  des  Deutschen  Seehandels  in 
Kriegszeiten,”  Hamburg,  1841. 

C.  AA'^.  Ascher.  “Beitriige  zu  einigen  Fragen  iiber  die  Verhaltnisse  der 
Neutralen  Schiftahrt,”  Hamburg,  1854. 

H.  Marquardscn,  professoral  Erlangen  in  Bav.ai’ia.  “ Der  Trent- Fall, 
ziir  Lehre  von  der  Kriegs  Contrebande,  und  dem  Transportdienst  der  Ncu- 
tralen,”  Erlangen,  18G2. 

Of  works  on  the  subjects  of  capture  and  search,  we  mention  : — 

G.  F.  <le  Martens.  “ Essai  concernant  les  Armateurs,  les  Prises  ct  sur- 
tout  les  Reprises,”  etc.,  Gottingen,  1795.  Also  in  German,  same  year. 

J.  G.  F.  Schlegel.  “ Sur  la  Visite  des  A-Tiisseaux  Neutres  sous  Convoi,” 
etc.  Originally  written  in  Danish,  and  translated  into  Fi'ench  by  De  Juge. 
Copenhagen,  1800. 

Robert  AA^ard,  the  historian  of  the  law  of  nations.  “ A Treatise  of  the 
Relative  Rights  and  Duties  of  Belligerent  and  Neutral  Powers  in  IMaritime 
Affairs,  in  which  the  Principles  of  Armed  Neutralities  and  the  Opinions  of 
Hiibner  and  Schlegel  are  fully  discussed,”  London,  1801.  Also,  “An 
Essay  on  Contraband,  being  a continuation  of  the  Relative  Rights  and  Du- 
ties,” etc.,  London,  1801. 

‘•AVar  in  Disguise  of  the  Neutral  Flags,”  London,  1806.  Reviewed  in 
No.  15  of  the  “Edinburgh  Review.” 

“Answer  to  AA''ar  in  Disguise,”  etc..  New  York,  1806. 

H.  AVheaton.  “ Inquiry  into  the  A^alidity  of  the  British  Claim  to  a Right 
of  Alsitation  and  Search  of  American  AYssels,”  London,  1842. 

J.  de  Neufville.  “ De  iis  quae  ad  tollendum  Servorum  Afrorum  Com- 
mcrcium  inde  a Congressu  A’iennensi  inter  Populos  Gesta  sunt,”  Amster- 
dam, 18-10. 

St.  Pierre.  “ Abrdge  dn  Projet  de  Paix  Perpetuelle,”  Rotterdam,  1729. 
For  this  and  other  similar  works  comp.  § 206. 

Kaniptz.  “ A’^blkerrechtliche  Erbrterung  des  Rcchtes  der  Miichte  in  die 
A'’^erfassung'  cines  cinzelnes  Staats  sich  einzumischen,”  Berlin,  1821. 

H.  C.  von  Ga^ern.  “ Kritik  von  A'olkerreehts,”  Leipzig,  1840. 

H.  von  Rotteck.  “ Das  Recht  der  Einmischnng  in  die  inneren  Angele- 
genheiten  eines  fremden  Staates,”  Freiburg,  1845. 

ATllefort.  “ De  la  Propriete  Litteraire  et  Artistique  an  Point  de  Vue 
International,”  Paris,  1851.  For  0.  AAhichter's  “ Vcrl.agsrecht,”  comp. 
§ 80,  note  to  ed.  4. 

G.  F.  de  Martens.  “ Erziihlungen  IMcrkwurdiger  Fiille  des  Neueren 
Europaischen  Volkcrrechts,”  Gottingen,  1800-1802,  2 vols. 

Ch.  de  Martens.  “ Causes  Celebres  du  Droit  des  Gens,”  Leipzig,  1858, 
2 vob.,  2ded.,  and  “ Nouvelles  Causes  Ceiebres,”  Leipzig,  1843,  2 vols. 


APPENDIX  I. 


427 


R.  von  Mohl.  *•  Die  Pflege  iler  Inttrnationalcn  Gemcinscliaft,  als  Auf- 
gabe  (les  Vbllcerreclits,”  and  “Die  VdlkerreclitliL'lie  Lelirc  von  Asvl,” 
monographies  in  bis  “ Staatsreebt,  Vblkerreebt  und  Politik,”  vol.  i.,  Tubin- 
gen, 18G0. 


3.  To  tbe  foregoing  list  add  the  following  works  relating  to  treaties  : — 
Do  Martens  et  De  Cnssy.  “ Recnoil  des  Traites,”  ete.  From  17G0  on- 
ward. Leipzig,  1845,  onward,  7 vols.  to  1857. 

Tetot.  “ Repertoire  des  Traites  de  Paix.  Den.x  Parties.  Partie  Cbro- 
nologi<pie,”  Paris,  18GG.  “ Partie  AIpbabetiqne,”  ibid,,  18G7. 

Collections  of  treaties  of  the  prineijral  Christian  states  : 1.  Austria,  ed- 
ited by  L.  Neumann,  from  1 763-1 85G,  6 vols.  — 2.  Belgium,  De  Garcia  de 
la  Vega,  5 vols.  — 3.  France,  De  Clercq,  from  1713  to  the  present  time,  9 
vols.,  1864-1872.  Published  under  tbe  ausj)ices  of  the  Minister  for  For- 
eign Alfairs. — 4.  Great  Britain,  Hertslet.  Com])lete  collection  of  treaties, 
etc.,  London,  11  vols.  and  more. — 5.  Greece,  Soufzo,  1858,  Athens. — 
G.  The  Netherlands,  E.  G.  Lagemans,  4 vols.  8vo,  1858,  1859.  — 7.  Poland, 
Angeberg,  “ Rec.  des  Traites  concernant  la  P.,”  Paris,  18G2. — 8.  Portu- 
gal. De  Castro,  from  1G40.  Li>bon,  185G-1858,  8 vols.  8vo.  — 9.  Russia. 
“ Recneil  tics  Traites,’’  etc.  Published  by  order  of  tlic  Minister  of  For- 
eign Affairs  by  F.  Martens,  in  Russian  and  French.  3 vols.  down  to  1876. 
— 10.  Savoy,  House  of,  from  Peace  of  Cateau  Cambreds  in  1559,  Turin, 
1836-1861,  8 vols.  4to.  — 11.  Spain,  “ Tratados  de  Paz,”  etc. , 1700-1843, 
IMadrid,  1843. — 12.  United  States, Treaties,  etc.,  since  1 776.  'Washing- 
ton, 1871,  with  an  ajipendi.x,  1873.  — 13.  Spanish  and  Portuguese  States 
of  America,  Cli.  Calvo,  “ Rec.  des  Traites  de  tous  les  Etats  de  r.Vmciique 
Latino,”  from  1493  onward.  In  three  parts  : the  first  in  11  vols.,  8vo,  to 
1807;  the  second  in  5 vols.,  1808-1819;  the  third  to  ihepresent  time.  Paris. 


4.  V’  riters  on  international  law  or  on  some  title  of  it  chiefiy  since  1860:  — 
iEgidi  and  Klauhold.  “ Frcio  Schiffe  untcr  Feindes  Faggc,”  1867. 

A.  Bello,  of  Chili.  “ Principio  de  Derecho  de  Gentes.”  An  edition  in 
Paris,  1860. 

]\L  Bernard,  formerly  Professor  at  O.xford.  “Historical  Account  of  the 
Neutrality  of  Groat  Britain  during  the  American  Civil  ’War,”  London, 
1870.  With  a number  of  lectures,  etc. 

J.  C.  Bhintschli,  Pi-ofessor  at  Zurich,  klunich,  Heidelberg.  “ Das  Mod- 
erne  Vdlckerrecht,”  Nordlingen,  1868,  ed.  2,  1872,  and  many  other  works, 
the  last  being  “Das  Beuterecht  in  Krieg,”  etc.,  Nordlingen,  1878. 

A.  Bulmerincq,  for  some  time  I’rofes.sor  of  International  Law,  etc.,  at 
Dorpat.  “ Die  Systematik  des  Vdlckcrr.,  von  H.  Grotiusbis  auf  die  Gegen- 
wart,”  1858.  “ Praxis,  Thcorio  ct  Codjficaiion  des  Yblckerrechts,”  Leip- 

zig, 1874.  A number  of  articles  in  Von  Holtzcudorf's  “ Rechtslexicon,” 
and  elsewhere. 


428 


APPENDIX  1. 


C.  Calvo,  Minister  from  Paraguay.  “ Lc  Droit  International  Tlieorique 
et  Pratique.”  First  written  in  Spanish,  18G8.  Second  French  edition  in 
1870-1872.  2 vols. 

E.  Cauchy.  “Memoires  sur  le  Droit  Maritime  International,”  etc.  Paris, 

1802.  2 vols.  (crowned  by  the  Academy  of  Moral  and  Political  Sciences). 

Dana,  R.  H.  Jr.,  editor  of  Wheaton’s  “Elements,”  ed.  8,  1806,  which 
is  specially  valuable  on  account  of  cases  growing  out  of  the  war  of  the  se- 
cession. 

Do  Clercq.  “ Formulairo  des  Chancelleries  Diplomatiques  et  Consul- 
aircs,”  Paris,  ed.  3,  1808.  Also  with  Yallat,  author  of  ‘‘Guide  Pratique 
des  Consulats,”  Paris,  2 vols.,  ed.  3,  1809. 

De  Pistoyc  et  Duvcrdy.  “ Traites  des  Prises  Maritiiiies,”  Paris,  1859, 
2 vols. 

P.  Esperson,  Professor  at  Pavia.  Author  of  numerous  works,  as  “Dei 
Rapporti  Giuridici  tra  i Belligeranti  e i Neutrali,”  Turin,  1805  ; “La 
Qucstione  dell’ Alabama,”  etc.,  Florence,  1809;  “ Diritto  Cambiario  In- 
ternazionale,”  Floi’cnce,  1870;  “Diritto  Diplomatico,’’  etc.,  2 vols. 

Field,  D.  D.  “ Draft  Outlines  of  an  International  Code,”  1872,  1873, 
also  translated  into  Italian  by  Prof.  Pierantoni. 

Fiore  Pascal,  Professor  of  International  Law  at  Turin.  “ Diritto  Pub- 
lico Internazionale,”  Milan,  1805.  “Diritto  Internazionale  Private,”  Flor- 
ence, 1874,  2d  ed.  Both  translated  into  French  by  M.  Pradier  Fodere. 

L.  Gessner.  “ Droit  des  Neutres  sur  Mcr,”  Berlin,  1865.  “ Ziir  Re- 

form des  Kriegsrccht,”  1875. 

L.  Goldschmidt,  Professor  at  Heidelberg,  1800,  at  Berlin,  1875,  author  of 
articles  in  several  legal  journals,  especially  of  “ A Project  of  International 
Arbitration  laid  before  the  Institut  Du  Droit  International  in  1874  ”;  also 
of  a “ Ilandbuch  des  Ilandelrechts,”  vol.  i.,  ed.  2.  Stuttgart,  1874,  187.5. 

Hall,  AV.  E.  “The  Rights  and  Duties  of  Neutrals,”  1874. 

Holland,  T.  E.,  Professor  at  Oxford,  editor  of  “ Albericus  Gentilis  de 
Jure  Belli,  lib.  tres,”  Oxford,  1877. 

Y.  Holtzendorf,  Professor  at  Munich,  editor  of  the  “ Encyclopaedie  der 
Rechtswissenschaft,”  3 vols.,  3d  ed.,  1870.  In  vol.  i.  there  is  a sketch 
of  European  International  Law  by  the  editor. 

F.  Laurent,  Professor  at  Ghent.  See  § 34.  The  entire  book  there  men- 
tioned is  now  called  “ Etudes  sur  I'llistoire  de  I’llumanite.”  10  vols. 

W.  B.  Lawrence,  comp.  AA^heaton,  p.  300,  supra.  Mr.  Lawrence,  besides 
editing  two  editions  of  AAJieaton’s  “Elements,”  has  been  engaged  in  an 
extensive  commentary  in  French  on  that  book,  and  on  AA^heaton's  “ His- 
tory,” of  which  four  volumes  have  appeared.  He  has  also  written  several 
smaller  essays  on  subjects  of  International  Law. 

Lucas,  C.  J.  ]\I.,  author  of  numerous  essays  on  the  civilization  of  war,  as 
on  arbitration,  1873,  on  the  Conference  of  Brussels,  1875. 

G.  Lushington.  “ A Manual  of  Naval  Prize  Law,”  London,  1866. 


APPENDIX  I. 


429 


Mancini,  P.  S.,  Professoi’  in  tlie  University  of  Rome,  Minister  of  State, 
etc.  “ Droit  International  Public,”  Naples,  1871,  and  numerous  essays 
on  the  theory  of  law. 

IMarquardsen,  II.,  Professor  at  Erlangen.  “ Der  Trent-Fall,”  Erlangen, 
1SG2,  with  many  articles  in  Rotteck  and  AVelcker’s  Lex.,  ed.  3,  in  Rlunt- 
schli’s  “ Staatswbrterbuch,”  ete. 

IMartens,  F.,  Professor  at  St.  Petersburg.  His  woiks  on  “ Private 
Property  during  War,”  18G9,  on  the  “ Problems  of  IModern  Interna- 
tional Law,”  on  “ Consulates  and  Consular  Jurisdiction  in  the  East,”  are 
in  Russian. 

Neumann,  L.,  Professor  at  Vienna.  “ Handbuch  des  Consulatwesens,” 
etc.,  Vienna,  1854.  His  collection  of  Austrian  treaties  is  elsewhere  men- 
tioned. 

Pierantoni,  A.,  Professor  at  Modena,  now  at  Naples.  A very  active 
writer,  some  of  whose  works  are  “ Gli  Arbitrati  Internazionali,”  Naples, 
1872,  Translation  of  ]\Ir.  Field’s  “International  Code,”  1874,  “ Storia  del 
Diiitto  Internazionalc  nel  Seeolo  XIX,”  in  the  jiress. 

Pradier-Fodere,  Paris.  Known  especially  in  international  law  by  his 
editions  and  translations  of  Grotius,  Vattel,  P.  Fiore;  and  as  author  of 
“ Principes  Gencraux  de  Droit,  de  Politique,  ct  do  Legislation,”  Paris, 
18G9. 

G.  Rolin-Jacquemyns,  chief  editor  of  the  “Revue  de  Droit  Interna- 
tional et  de  la  Legislation  Comparee,”  in  which  many  articles  of  his  own 
appear. 

Verge,  C.  IL,  has  published  with  a commentary  the  “Precis  du  Droit 
des  Gens”  of  De  Martens,  which  has  passed  through  two  editions. 

Vidari,  Ercolc,  Professor  at  Pavia.  “Del  Rispetto  della  Propriety 
fra  gli  Stati  in  Geeri-a,”  Pavia,  18G7. 

“Revue  de  Droit  International,”  edited  by  Messrs.  Rolin-Jaequemyns, 
Asher,  and  AVestlake.  Begun  in  1769. 


APPENDIX  IT. 


LIST  OP  THE  MOST  IMPORTANT  TREATIES  SINCE  THE  REFOR- 
MATION, WITH  A BRIEF  STATEMENT  OF  THEHl  PROVISIONS. 

[In  this  list  the  dates  of  the  treaties  arc  intended  to  represent  the  day  of  their  signature,  and 
always  in  new  style.  For  the  modem  ones  we  cite  the  collection  of  Martens  and  hir.  continu- 
ators  thus : Martens,  “ Rec.,’*  or  “ R.,'’  for  the  Recueil ; Martens,  “ Nouv.  Rec.,*’  or  “ N.  R.,-’  for 
the  Nouveau  Recueil;  and  Murhard,  or  Murhard-Samwer,  as  Martens  “Nouv.  Rcc.  Gen.,”  or 
“N.  R.  C.,"  for  the  Nouveau  Recueil  General.] 


Ti:i:atii:s  of  tjif.  Agf.  of  Religious  Antagoxisji. 

152G,  Jnnnary  14.  (Dumont,  iv.,  1,  399.)  Treaty  of  IMadrid,  by  wbicli 
Francis  1.  of  France,  then  a prisoner,  covenanted  to  give  up  bis  claims  to 
.Milan,  Genoa,  and  Naples,  Flanders  and  Artois,  and  to  transfer  to  the  Em- 
peror Charles  V.  the  dneby  of  Burgundy  — with  its  dependencies  the  coun- 
ty of  Cliarolais  and  the  seigniories  of  Noyers  and  of  Cbatean  Cliinon,- — ■ 
together  with  the  viscounty  of  Auxonne  and  the  “ ressort,  ” or  jurisdiction  of 
Saint-Laurent,  as  being  dependencies  of  Franche-Cointc.  These  and  other 
onerous  and  humiliating  conditions  upon  which  he  obtained  his  liberty  he 
neither  fnllilled  nor  intended  to  fulfill.  Indeed  a “ jirotestation  ” (Dumont, 
u.  s.,  412)  of  the  da}'  before  declares  that  (he  treaty  is  null,  being  made  by 
constraint.  (Comp.  § 104.)  Ilai  ing  by  such  fraud  obtained  bis  liberty,  be 
refused,  when  the  estates  of  Burgundy  would  not  separate  (hemselves  from 
France,  to  return  to  prison  as  he  had  stipulated.  Then  followed  the  Holy 
League  (at  Cognac,  Afay  22,  152G,  between  Pope  Clement  VIT.,  Francis  L, 
Venice,  Florence  and  the  Duke  of  IMilan,  against  Charles  V.),  and  a new 
Italian  war,  and  in  — 

1.529,  August  5 (Dumont,  iv.,  2,  7),  the  treaty  of  C.imbray,  or  Pai.x 
des  Dames,  so  called  fi-oni  IMargaret  of  Austria,  (he  Km[)eror’s  sister,  and 
Louisa  of  Savoy,  mother  of  Fi-ancis  I.,  who  negotiated  it.  By  (his  treaty, 
which  was  in  form  a renewal  of  the  treaty  of  IMadriil  with  certain  im])ortant 
cxce])lions,  Francis  was  secured  in  the  possession  of  Burgundy  and  its  de- 
jiendcncies,  renounced  Flanders,  Artois,  etc.,  gave  u])  his  claims  in  Italy, 
abandoned  bis  allies,  and  in  fact  annihilated  French  influence  in  that  pe- 
ninsula. Ilis  two  sons,  hostages  at  Madrid,  were  freed  on  an  engagement 


APPENDIX  ir. 


431 


to  pny  two  million  crowns  of  gold  or  ducats.  The  adherents  and  heirs  of  the 
Constable  de  Bourbon  were  to  be  restored  to  their  estates  and  civil  stand- 
ing. This  treaty,  which  was  humiliating  enough  in  itself,  was  made  inoi-o 
so  by  the  solemn  formalities  of  its  ratification,  as  if  to  show  that  the  word 
of  Francis  could  not  be  trusted.  (Comp.  § 110.) 

On  the  29th  of  June,  just  before  this,  at  Barcelona,  a peace  was  con- 
cluded between  the  Pope  and  the  Emperor,  in  which  the  former  agreed  to 
give  the  latter  the  Imperial  crown,  and  the  investiture  of  Naples  as  a fief 
without  payment  of  vassals’  dues  except  that  of  a palfrey,  with  the  right  of 
nomination  to  twenty-four  ei)iscopal  sees  in  that  kingdom.  Charles  in  turn 
agreed  to  restore  the  Pope’s  relatives,  the  bani,«hed  Medici,  and  to  stop  the 
growth  of  heresy  in  Germany.  (Dumont,  iv.,  2,  1-1.)  A secret  article,  it 
is  said,  stipulated  that  the  Pope  should  not  give  his  consent  to  the  divorce 
of  the  King  of  England  from  the  Emperor’s  aunt. 

1530,  December  31.  Becess  or  convention  made  at  Schmalkalden,  prelim- 
inary to  the  league  concluded  at  the  same  place  February  G,  1531,  between 
a part  of  the  Protestant  princes  and  towns  for  mutual  itroteclion  in  cai-e  of 
attack  on  account  of  their  religion.  (Dumont,  iv.,  2,  pp.  75,  78.)  It  was 
renewed  for  ten  years,  and  enlarged  in  153G,  September  29.  (Dumont, 
u.  s.,  141.)  For  the  Catholic  counter-league  of  June  10,  1538,  comp.  Du- 
mont, u.  s.,  1G4. 

1544,  September  18.  The  peace  of  Crespy  was  chiefly  a ratification  of 
previous  treaties,  as  that  of  Cambray,  and  that  of  Nice  (June  18,  1538), 
which  latter  was  a ten  years’  truce. 

1547,  May  19,  The  Protestants  of  the  Schmalkalden  League,  having 
taken  up  arms  against  the  Emperor  Charles  V.  without  success,  and  John 
Frederick,  Elector  of  Saxony,  being  made  prisoner  at  the  battle  of  IMilhl- 
berg,  he  submits  in  the  capitulation  of  Wittenberg  of  this  date  to  the  loss 
of  his  Electoral  office  and  Principality,  and  to  imprisonment  during  the 
Emperor's  pleasure.  The  Electorate  is  transferred  from  the  Ernestine  to 
the  Albertine  line  of  Saxony,  which  is  still  the  leading  house  ; and  to  the 
captive  Elector’s  children  were  granted  a number  of  towns  and  districts,  as 
Eisenach,  Weimar,  Jena,  Gotha,  Saalfeld,  and  Coburg,  — the  latter  to  be 
used  first  for  the  benefit  of  his  brother.  (Dumont,  u.  s,  332.)  Out  of 
these  grew  the  Saxon  duchies. 

1552,  August  2.  Treaty  of  Passau,  by  which  the  Landcr.ave  of  Hes.se  was 
set  free,  other  Protestant  princes  were  restored  to  their  honors  and  estates, 
and  relic-ions  freedom  was  promised  to  the  adherents  of  the  Augsburg  Con- 
fes.sinn,  etc.  (Dumont,  iv.,  3,  42  ) This  was  preliminary  to  the  religious 
peace,  concluded  between  the  estates  of  Germany  in  the  year — 

1555,  September  25,  at  Augsburg.  By  this  the  Lutheran  religion  ac- 
quired a legal  status  by  the  side  of  the  Catholic,  but  the  Reformed  religion 
gained  no  ])rivileges.  The  peace  embraced  knights  holding  immediately  of 
the  empire,  and  both  imperial  and  free  towns,  as  well  as  higher  members  of 


432 


APPENDIX  n. 


the  confederation.  Subjects  professing  another  religion  from  that  of  their 
lord  might  have  the  liberty  of  emigrating  without  loss  of  goods.  The 
church  j)roperty  already  in  the  hands  of  Protestant  estates,  and  not  imme- 
diately related  to  the  empire,  was  confirmed  to  them.  All  ecclesiasties 
who  should  renounce  the  Catholic  religion  for  that  of  the  Augsburg  Confes- 
sion, “ whether  archbishop,  bishop,  prelate,  or  any  other  of  the  spiritual 
order,”  should  lose  the  church  goods  and  rights  which  they  had  before  en- 
joyed. This  goes  by  the  name  of  reservalum  ecclesiasticum,  and  proved  to 
be  a source  of  countless  troubles.  (Dumont,  u.  s.,  iv.,  3,  88.) 

1579,  January  23.  The  union  of  Utrecht,  out  of  which  grew  the  Dutch 
Republic.  (Dumont,  v.,  1,  322.) 

1G31,  April  6.  Treaty  of  Cherasco  (Querasque),  between  the  Emperor 
Ferdinand  II.  and  Louis  XIII.  of  Franco  (Dumont,  vi.,  1,  9),  carrying  out 
the  treaty  of  llatisbon  (Regensburg),  of  October  13,  1630,  by  virtue  of 
which  the  Emperor  was  to  acknowledge  Charles  Duke  of  Nevers  as  Duke 
of  IMantua  and  IMontferrat.  (Dumont,  v.,  2,  615.)  But  Trino  (Train)  and 
certain  other  places  in  Montferrat  were  to  go  to  the  Duke  of  Savoy.  The 
French  also  renounced  their  conquests  in  Italy.  In  a secret  treaty,  how- 
ever, between  France  and  Savoj',  tbe  best  parts  of  IMontferrat,  the  town  of 
Alba,  and  its  environs,  were  to  be  handed  over  to  the  Duke  of  Savoy,  who 
in  turn  was  to  give  back  Pigncrol,  and  a road  from  France  leading  to  it,  to 
the  French  king,  thus  opening  the  way  into  Italy.  By  this  secret  treaty 
the  Pope  was  deceived,  and  the  interests  of  the  French  pretendant  to  Man- 
tua were  sacrificed.  (Comp.  Sclilosser’s  “ Weltgesch.,”  xiv.,  398.) 

1648,  October  24.  PEACE  of  Westphalia,  consisting  of  the  two  treaties 
of  Mlinstcr  where  the  French,  and  of  Osnabriick  where  the  Swedes  nego- 
tiated with  the  Emperor  — the  smaller  German  powers  being  also  repre- 
sented. 'This  peace  put  an  end  to  the  Thirty  Years’  War,  and  adjusted  the 
relations  of  a large  part  of  Europe.  In  the  same  3 ear,  on  the  30th  of  Jan- 
uary, Spain  and  Holland  made  a treaty  of  peace  at  Munster. 

Some  of  the  more  important  diplomatic  transactions,  before  this  wmr  or 
during  its  course,  and  relating  to  the  quarrels  in  the  German  empire,  were 
the  Protestant  Union,  May,  1608;  the  Catholic  Liga,  1610  (Dumont,  v.,  2, 
118);  the  Irealg  of  Ulm,  July  3,  1620,  by  which  the  Protestant  princes  vir- 
tually abandoned  tbe  Elector  Palatine,  as  far  as  Bohemia  was  concerned 
(Dumont,  u.  s.,  369);  the  peace  of  LiibeeJe,  May  22,  1629,  in  which  the  King 
of  Denmark  withdrew  from  the  war  in  Germany  (Dumont,  u.  s.,  584);  the 
edict  of  restitution,  March  6.  1629  (Dumont,  u.  s.,  564);  and  the  peace  (f 
Prague,  IMay  30,  1635  (Dumont,  vi  , 1,  88),  between  the  Emperor  and  (he 
Elector  of  Saxony,  to  which  last  nearly  all  the  German  states  ere  long  ac- 
ceded, thus  abandoning  the  war  and  the  cause  of  the  Swede.s.  The  edict  of 
restitution  was  an  interpretation,  given  by  the  Em[)ei-or’s  arbitraiy  act,  to 
the  treaties  of  Passau  and  of  Augsburg,  to  the  effect  that  all  ecclesiastical 
property,  seized  by  the  Protestant  estates  since  the  year  1552,  should  be 


APPENDIX  U. 


433 


restored;  that  Catholic  princes  had  the  right  of  requiring  their  Protestant 
subjects  to  conform  to  their  religion  or  of  sending  them  out  of  their  terri- 
tories; and  that  the  peace  did  not  include  any  Protestants,  except  those 
who  adhered  to  the  Confession  of  Augsburg  non  variaia,  thus  excluding  the 
Reformed  or  Calvinists.  Tlte  peace  of  Prague,  on  the  other  hand,  virtually 
gave  into  the  hands  of  the  Protestant  estates  all  immediate  property  which 
they  had  approi)riated  before,  and  all,  mediate  or  immediate,  which  they 
had  appropriated  since  the  religious  peace,  by  conceding  to  them  the  con- 
trol and  use  of  it  for  forty  years,  etc. 

The  principal  provisions  of  the  Peace  of  AVestphalia  (Dumont,  vi.,  1, 
450,  469  in  French, — for  the  original  Latin  see  Ghillany,  “Manual  Di- 
plom.,”  i.,  1-100)  were  in  brief  these:  — 

1.  Sweden,  as  a satisfaction  for  i-estoring  places  occupied  in  the  war,  re- 
ceived Hither  Pomerania,  the  isle  of  Riigen,  parts  of  Further  Pomerania  : 
Stettin,  Garz,  D.imm,  Golnow,  and  the  isle  of  Wollin,  the  course  of  the  Oder 
between  these  places,  the  “ frisehe  Haff  ” and  its  mouths,  etc.,  with  the  e.x- 
pcctancy  of  the  rest  of  Further  Pomerania,  should  the  males  of  the  house 
of  Brandenburg  become  e.xtiuct;  further,  the  archbishopric  of  Bremen  (the 
city  retaining  its  rights  ami  immediate  relation  to  the  empire),  the  bishop- 
ric of  AVerden,  the  town  and  port  of  AA'^ismar  with  various  appurtenances. 
These  were  to  continue  parts  of  the  empire,  of  which  the  King  of  Sweden, 
as  Duke  of  Bremen,  AA'erden,  and  Pomerania,  Prince  of  Riigen,  and  Lord 
of  AA'ismar,  was  to  become  a member  with  three  votes  in  the  Diet;  with  the 
privilege  of  supreme  jurisdiction  on  condition  of  erecting  a court  of  highest 
instance  within  the  territory,  — which  was  established  at  AVismar;  — with 
the  power  of  choosing  between  the  Aulic  Council  and  the  Imperial  Cham- 
ber, in  case  suits  should  be  brought  against  Sweden  touching  these  German 
territories;  and  with  the  right  of  founding  a University,  for  which  Greifs- 
wald  was  afterwards  selected  (Peace  of  Osnahriick,  Art.  X.).  — To  the 
Swedish  troops  five  million  ri.x  dollars  were  to  be  paid  by  the  empire  (Art. 
XVI.),  and  a secret  article  bound  the  Emperor  to  pay  to  Sweden  six  hun- 
dred thousand  rix  dollars,  and  determined  the  mode  of  payment. 

2.  To  France  were  ceded  the  bishoprics  of  Metz,  Toul,  and  Verdun,  the 
town  of  Pignerol  (see  Treaty  of  Cherasco),  Breisach,  the  landgravate  of  Up- 
per and  Lower  Alsace,  the  Sundgau,  the  prefecture  or  “ landvogtel  ” of  ten 
imperial  towns  in  Alsace,  and  the  right  to  occupy  the  fortress  of  Philippshurg. 
T1  ic  ceded  places  in  Alsace,  the  Sundgau,  and  the  prefecture  were  to  pertain 
to  the  Crown  of  France  forecer  and  to  he  incorporated  with  its  dominions  (Peace 
of  Miinst.,  §§  70-76).  Yet  a later  article  of  this  peace  (§87),  hinds  the  King 
of  France  to  leave  the  Bishops  of  Basel  and  of  Strashurg,  with  all  estates  in 
cither  Alsace  holding  immediately  of  the  Empire,  the  ten  imperial  towns  be- 
fore mentioned,  etc.,  “ in  that  liberty  and  possession  of  immediacy  towards 
the  Empire  which  they  had  before  enjoyed.”  For  the  questions  which 
grew  out  of  these  articles,  see  Do  Garden,  i.,  213-223. 

28 


434 


APPENDIX  II. 


3.  A general  amnesty  running  back  to  the  beginning  of  the  yrar,  and  a 
I'estitiition  of  the  state  of  things  in  1G24  among  the  estates  of  the  Kni])ire 
Mere  agreed  nj)on.  lint  in  I'xpress  terms  a numbei'  of  the  German  States 
had  teiTitoiy  eonfirmed  to  them,  or  granted  by  way  of  compensation.  Thus, 
to  the  Elector  of  Brandenburg,  for  Id.s  territory  ceded  to  Sweden,  were  as- 
signed tlio  bi.'hopries  of  INlinden,  Halberstadt,  and  Camin.  and  arelibish- 
opric  of  j\Iagdcburg,  or  rather  the  greater  part  of  its  territory,  after  the 
rights  of  its  present  administrator,  the  Duke  of  Saxony,  should  cease.  It 
eaino  into  the  hands  of  the  Prussian  House  not  until  1G80.  Whatever 
])o\ver  of  collation  within  the  Bishopric  of  Camin,  the  Dukes  of  Hither  Po- 
merania formerly  had,  M'as  to  go  to  Sweden,  but  the  patronage  held  by  the 
former  duke  of  rurlher  Pomerania,  the  episcopal  territory,  and  the  part  of 
Further  Pomerania  not  secured  to  Sweden,  were  to  go  to  Brandenburg. 
Again,  to  Mecklenburg,  in  lieu  of  Wismar,  were  given  the  episcopal  terri- 
ritories  of  Schwerin  and  Ratzeburg  with  trvo  conimanderies,  or  benelices 
of  the  Knights  of  St.  John,  within  the  Diuhy,  IMirau  and  Nemerau,  the 
latter  being  jnit  into  the  hands  of  the  line  of  Gustrow,  the  rest  into  those  of 
Schwerin.  Further,  to  Brunswick-Liineburg,  as  a compensation  for  rights 
renounced  to  Sweden,  Brandenburg,  and  MccdJenhnrg,  was  given,  together 
with  the  monastic  foundations  of  AFalkenreid  and  Groningen,  etc.,  the  per- 
petutil  alternate  succession  in  the  Bishopric  of  Osnabriick.  After  the  de- 
cease of  the  j)rcsent  bishop,  a Protestant  one  was  to  be  elected  from  the 
houses  of  Brunswick,  during  whose  office  the  Archbishop  of  Cologne  was  to 
c.xercisc  episcopal  rights,  as  metropolitan,  but  over  Catholics  only.  The 
house  of  Hesse-Cassel  received  the  abbey  of  Ilersfeld  or  Hirsehfeld,  as  a 
secular  prineipalit)'  with  the  sovereignty  over  Schaumburg  and  other  ter- 
ritory formerly  claimed  by  the  Bishoj)  of  IMinden,  an  indemnity  in  money  of 
GOO, 000  thalers,  and  an  acknowledgment  of  its  claims  to  a share  in  the  in- 
heritance of  Marburg  (Treaty  of  Osnab.,  Art.  X.-XV). 

4.  The  exiled  and  despoiled  house  of  the  Electors  Palatine  recovered  the 
lower  Palatinate,  with  the  right  of  reversion  to  the  upper  ; and  an  eighth 
electorate  was  erected  in  its  favor,  the  old  dignity  of  Elector  Palatine  and 
the  upper  Palatinate  remaining  with  Bavaria  until  the  expiration  of  its  du- 
cal line.  So  also  the  outlawed  or  expelled  princes  of  AViirtemberg,  Baden, 
Xassau,  etc  , were  restored  to  their  pri-tine  state.  (Art.  IV.) 

5.  Switzindand,  long  independent  and  disconnected  from  the  Empire  in 
fact,  -was  a(dcnowledgod  to  be  such  in  right. 

G.  d he  Empernr  was  to  he.  governed  bv  the  votes  of  the  Diet,  — which 
was  thus  conceded  to  he  more  than  an  a<lvisory  bo'ly,  — in  all  matters  per- 
taining to  war,  peace,  legislation,  etc.  The  memhers  of  the  Diet  obtained 
the  right  not  only  of  contracting  alliances  among  themselves  hut  with 
foi-eiiin  jirinees  also,  ])rovided  no  prejudice  came  therehy  to  the  Emperor 
ami  the  Empire,  — an  unmeaning  restriction,  which  could  not  prevent 
the  effect  of  this  vast  concession  to  weaken  the  power  of  the  Emperor  and 


APPENDIX  IL 


435 


the  unity  of  the  Empire  very  greatly.  Tlie  imperial  court  was  to  have 
members  of  bolli  ii  iigions  in  nearly  ecpial  numbers  ; ihat  is,  two  Calholic 
presiilents  ami  twenty-si.x  assessor.^,  two  pi'csiilents  of  the  Aiigslmi-o-  Cmi- 
fession,  appointed  by  the  Emperor,  and  twenty-four  as.sessors.  If  ilie  opin- 
ions of  the  court  were  divided  according'  to  the  religious  faith  cf  the  mem- 
bers, a case  was  to  go  up  to  the  Diet  (Art.  VIII.,  Art.  V.,  § 5.3). 

7.  Among  the  provisions  affecting  religion,  the  most  important  are  the 
following  : 1.  The  religious  freedom,  guaranteed  in  the  treaty  of  Passaii, 

and  in  the  religious  [teace  of  Augsburg,  was  confirmed  to  the  Lutherans, 
and  extended  to  the  Reformed  or  Calvinists.  But  no  other  form  of  relig* 
ion  besides  these  and  the  Catholic  was  to  be  tolerated  in  the  Empire  (.Art. 
V.,  § 1,  Art.  VII.).  2.  Tlie  reservatum  ecclesiasiicum  of  the  earlier  treaties 
was  replaced  by  a rule  making  the  year  1G24  the  normal  year  for  the  pur- 
pose of  deciding  which  confession  should  have  the  control  over  ecclesiasticij 
properties  : that  is,  a hencfice,  held  by  a Catholic  or  Protestant  in  January, 
1G24,  shotdd  lemain  in  perpetuity  attached  to  the  same  religion  (Art.  V., 
§ 2).  But  in  the  Palatinate,  Baden,  Al’iirtcmbei'g,  etc.,  by  the  act  of  am- 
nesty (Art.  IV.,  §§  G,  24,  2G),  all  things  were  to  be  restored  to  the  condition 
which  e.xistcd  before  the  “ Bohemian  movements;”  i.  e.,  the  year  1G18  was 
the  normal  year  for  the  Elector  Palatine  and  his  allies,  the  ohl  religious 
constitution  of  whose  territories  would  otheiuvisc  have  been  wholly  altered. 
The  Protestants  long  insisted  on  1G18  as  the  normal  year,  but  as  most  of  the 
counter-reforms  in  the  Emperor’s  hereditary  dominions  took  place  between 
this  year  and  1G24,  he  would  not  yield,  and  the  Swedes  gave  way.  'I  his 
suppressed  the  Reformation  in  Bohemia  and  a large  part  of  Soutliern  Cer- 
niany'.  Moreover,  as  the  amnesty  (.Art.  IV.  and  §§  52,  53),  conceded  to  sub- 
jects of  Austria,  included  no  restoration  of  their  confiscated  estates,  their 
condition  was  a very  hard  one.  An  exception,  however,  was  made  in  favor 
of  certain  of  the  higher  Silesian  nobility,  and  of  the  town  of  Breslau: 
though  subjects  of  Austria,  these  were  allowed  to  retain  such  rights  of  Prot- 
estant worship  as  they  enjoyed  before  the  war.  Other  nobles  of  Silesia 
anil  of  lower  Austria  with  their  subjects,  adherents  of  the  Augsburg  Con- 
fession, had  the  right  of  private  worship  and  could  not  be  compelled  to  em- 
igrate. Three  Lutheran  churches  were  to  be  allowed  in  Silesia  (Art.  V., 
§§  38,  39,  40).  3.  If  a holder  of  an  ecclesiastical  benefice  should  change 

his  religion,  he  was  to  vacate  his  benefice  without  restoring  the  former  fruits 
of  it,  or  losing  his  honor  or  good  name.  4.  If  any  territorial  sovereign 
should  change  his  religion  (as  from  the  Lutheran  to  the  Reformed),  or  ac- 
quire sovereignty  over  a land  where  another  cMftn.s  was  establidied,  he  could 
there  only  enjoy  his  own  domestic  worship,  without  having  the  power  of 
altering  the  e.xisting  church,  or  filling  the  offices  with  persons  of  his  oivn 
faith.  If  a community  should  go  over  to  the  religion  of  the  new  sovereign, 
it  might  do  so  unhindered,  but  the  old  state  of  things  in  school  and  church 
must  continue  (Art.  VII.,  §§  1,  2).  5.  The  jus  reformandi  of  the  old  trea* 


436 


APPENDIX  II. 


ties  was  renewed  to  all  the  immediate  estates  of  the  empire,  but  the  follow- 
ing limitations  were  imposed  on  its  exercise:  Subjects  differing  in  religion 
from  their  sovereign,  and  holding  ecclesiastical  goods  in  any  part  of  1G24, 
were  secured  in  possession  of  the  same.  Those  who  had  enjoyed  the  riiilit 
of  public  or  of  house  worship  in  any  part  of  1G24,  were  to  retain  the 
right,  and  were  secured  in  all  things  incidental  to  it.  Those  subjects  of 
sovereigns  of  a different  religion,  who  had  neither  the  public  nor  the  do- 
mestic exercise  of  their  religion  at  the  time  aforesaid,  or  who  should  change 
their  religion  after  the  peace,  had  liberty  of  conscience  and  the  civil  advan- 
tages of  other  citizens  guaranteed  to  them.  This  toleration  consisted  in  the 
free  exercise  of  private  devotions,  the  public  exercise  of  their  I'eligion 
in  the  vicinity,  if  they  were  near  places  of  worship,  and  in  the  right  of 
sending  their  children  to  schools  abroad,  or  of  employing  instructors  at 
home,  of  their  own  faith.  They  might,  however,  be  comj)elled  to  emigrate, 
or  might  emigrate  of  their  own  accord.  In  this  case  they  Avould  be  free 
to  dispose  of  their  own  estates,  and  if  required  to  leave  their  homes,  a term 
of  several  years  was  to  be  granted  to  them  for  this  purpose  (Art.  V. , §§  36, 
37,  39,  40). 

The  Peace  of  Westphalia,  says  Wheaton  (“  History,”  part  i.,  at  the  be- 
ginning), “established  the  equality  of  the  three  religious  communities  of 
Catholics,  Lutherans,  and  Calvinists  in  Germany,  and  sought  to  oppose  a 
perpetual  barrier  to  further  religious  innovations  and  secularizations  of  ec- 
clesiastical i)ropcrty.  At  the  same  time  it  rendered  the  states  of  the  Em- 
pire almost  independent  of  the  Emperor,  its  federal  head.  It  arrested  the 
progress  of  Germany  towards  national  unity  under  the  Catholic  banner, 
and  prepared  the  way  for  the  subsequent  development  of  the  power  of 
Prussia,  — the  child  of  the  Reformation,  — which  thus  became  the  natural 
head  of  the  Protestant  party,  and  (he  political  rival  of  the  house  of  Aus- 
tria, wliich  last  still  maintained  its  ancient  position  as  the  temporal  chief 
of  the  Catholic  body.  It  introduced  two  foreign  elements  into  the  internal 
constitution  of  the  Em])ire,  — France  and  Sweden,  as  guarantees  of  the 
peace,  and  Sweden  as  a member  of  the  federal  body,  — thus  giving  to 
these  two  powers  a ])erpetual  right  of  interference  in  the  internal  affairs  of 
Germany.  It  reserved  to  the  individual  states  the  liberty  of  forming  alli- 
ances among  themselves,  as  well  as  with  foreign  powers,  for  their  preserva- 
tion and  security,  provided  these  alliances  were  not  directed  against  the 
Emperor  and  the  Empire,  nor  contrary  to  the  public  peace  and  that  of 
Westphalia.  This  liberty  contributed  to  render  the  federative  system  of 
Germany  a new  security  for  the  general  balance  of  European  power.  The 
Germanic  body  thus  placed  in  the  centre  of  Europe,  served,  by  its  compo- 
sition, in  which  so  many  political  and  religious  interests  were  combined, 
to  maintain  the  independence  and  tranquillity  of  all  the  neighboring 
states.” 

1648,  January  30.  While  the  Peace  of  Westphalia  was  still  in  agitation, 


APPENDIX  II. 


437 


Spain  and  Holland  made  a separate  peace  at  IMiinstcr.  By  tins  treaty, 
(1.)  The  freedom  and  sovereignty  of  the  United  Provinces  were  recog- 
nized. (2.)  Each  party  retained  the  jdaces  in  its  ])ossession.  Tims  Hol- 
land gained  Bois-le-Duc  or  Hertogenbuseh,  Bergen-op-Zoom  with  Breda  in 
Brabant,  Hiilst,  Axel,  etc.,  in  Flanders,  certain  joint  rights  in  Uinburg, 
etc.  (3.)  The  Scheldt  and  certain  water-courses  connected  with  it  were 
closed,  by  which  Antwerp  declined.  (4.)  Places  won  by  the  Dutch  from 
Portugal  were  renounced  by  Spain.  Important  commercial  concessions  were 
made  to  Holland  in  the  East  and  AVest  Indies.  (Dumont,  vi.,  1,429,  in 
French.) 

1G59,  November  7.  Peace  of  the  Pyrenees,  which  ended  a twenty  years’ 
war  between  France  and  Spain  connected  with  the  long  war  in  Germany. 
This  peace  was  negotiated  in  an  island  of'  the  Bidassoa,  by  the  ministers  of 
the  two  kingdoms  in  person,  Louis  de  Haro  and  Cardinal  Mazarin.  By 
this  peace  the  Prince  of  Conde  was  reestablished  in  his  estates  and  honors, 
— receiving,  however,  the  government  of  Burgundy  instead  of  that  of 
Guienne  ; the  Duke  of  Lorraine  received  his  duchy  again,  giving  up  Mo- 
yenvic,  the  duchy  of  Bar  and  the  county  of  Clermont,  and  allowing  free 
transit  for  the  troops  of  France:  the  dukes  of  Modena  and  Savoy,  allies  of 
France,  were  restored  to  the  state  they  had  been  in  before  the  war;  and 
the  Prince  of  IVIonaco  was  to  be  put  in  possession  of  his  estates  under  the 
jurisilietion  of  the  Spanish  king,  with  the  liberty  of  alienating  them,  etc. 
France  received  by  this  treaty  Artois,  except  St.  Omer  and  Aire,  with 
places  in  Flanders,  Hainault,  and  Luxemburg;  and  on  the  borders  of  Spain 
the  counties  of  Roussillon  and  Conflans,  except  the  parts  lying  in  the 
Pyrenees,  and  a portion  of  Cerdagne  in  those  mountains  looking  toward 
France.  It  was  stipulated  that  no  aid  should  be  given  by  France  to  Portu- 
gal, which  Spain  hoped  to  resubjugate.  Finally  the  marriage  of  Louis  XIV. 
and  the  Infanta  of  Spain,  Maria  Theresa,  was  agreed  upon  in  this  treaty, 
and  in  a special  contract  of  the  same  date;  and  it  was  stipulated  that  the 
Infanta,  for  herself  and  the  issue  she  might  have  by  the  French  king,  in 
consideration  of  a dowry  of  500,000  gold  crowns,  should  renounce  before 
marriage  for  herself,  and  conjointly  with  him  after  marriage,  all  right  of 
succession  to  the  crown  of  Spain  (Dumont,  vi.,  2,  2G4-293).  This  treaty 
added  to  the  advantages  gained  by  France  in  the  treaty  of  Munster,  and 
her  ascendency  in  Europe  was  now  secured. 

IGGO,  May  3 and  June  G.  Tri-aty  of  Oliva  near  Dantzig  between  the 
King  of  Poland  of  the  house  of  Wasa  in  the  elder  branch  with  his  allies, 
and  the  King  of  Sweden;  and  treaty  of  Copenhagen  between  the  kings  of 
Denmark  and  Sweden.  By  the  first  the  Polish  king  renounced  for  himself 
and  his  line  all  claim  to  Sweden,  Finland,  etc.,  recovered  supremacy  over 
Courland  and  certain  towns,  Marlenburg,  Elbing,  etc.,  and  gave  up  to  Swe- 
den, Esthonia  and  Livonia  in  great  part.  The  duchy  of  Prussia  was  en- 
tirely severed  from  Poland’s  suzerainty  in  favor  of  the  Elector  of  Branden- 


438 


APPENDIX  II. 


burg.  (Dumont,  vi.,  2,  303,  319.)  The  Treaty  of  Copenhagen  confirmed  in 
part  that  of  lloetskild  (or  llotseliild,  March  S,  1558.  Dumont,  vi.,  2,  205), 
Tlio  provinces  of  llalland,  Schunen,  Illeckingen,  the  islet  of  Hween,  Bahus 
and  its  pi'ccinct  were  secured  to  Sweden,  which  lestored  to  Denmark  thti 
island  of  Bjrnhulni  and  Drontheim  in  Norway,  eonejuered  in  the  war,  and 
renounced  its  claims  to  the  counly  of  Dehnenhorst  and  Ditmarseh  in  Ger- 
many. Arrangements  were  made  also  with  regard  to  the  right  of  passage 
through  the  Sound  and  the  Belt.  Of  the  Treaty  of  Oliva,  France  was  a 
guarantee;  of  the  Treaty  of  Copenhagen,  France,  England,  Holland. 


TKEATIES  OF  THE  AGE  OF  I.OUIS  XIV. 

16G7,  July  31.  Treaties  of  Bi'cda  between  England  and  France,  England 
and  Holland,  England  and  Denmark.  England  restored  to  Ftance  Acadia 
(Nova  Scotia),  and  recovered  Antigua,  hlontserrat,  and  the  English  part 
of  St.  Christopher’s  in  the  West  Indies.  Between  England  and  Holland 
the  status  quo  of  I\Iay  20,  1GG7,  determined  in  regard  to  the  acquisitions 
they  might  have  made  from  one  another  in  the  war.  By  this  rule  England 
retained  New  Netherlands  (New  York),  and  Holland,  Surinam.  Another 
article  of  great  importance  for  Holland  modified  the  English  Navigation  .Act 
of  1G51,  in  such  sort  that  merchandise  coming  down  the  Rhine  could  be  ini- 
porteil  into  England  in  Dutch  vc.ssels.  (Dumont,  vii.,  1,  40-5G.) 

1GG8,  .January  23.  Triple  alliance  between  England,  Holland,  and  Sweden, 
in  order  to  promote  a peace  between  France  and  Spain.  (Dumont,  u.  s., 
C8-70.)  In  May  of  the  same  year  peace  was  concluded  between  France 
and  Spain,  at  Aix-la-Cbapelle,  by  which  places,  taken  by  the  French  in  the 
Sjranish  Netherlands,  were  retained,  — Charleroi,  Binehe,  Ath,  Donay, 
Tournay,  Oudenarde,  Lille,  Arinentiercs,  Conrtray,  Bruges,  Fumes,  the 
fort  of  Scarpe;  — and  Franehc  Comte  was  restored  to  Sjiain. 

16G8,  February  23.  Treaty  of  Lisbon  between  Spain  and  Portugal,  Eng- 
land acting  as  mediator  and  guarantee.  The  independence  of  Portugal  is 
virtually  acknowledged  by  Siiain’s  making  a treaty;  and  all  territory,  ex- 
cept Ceuta  in  Africa,  is  restored.  (Dumont,  vii.,  1,  70.) 

]G78-1G79.  Peace  of  Nymwegen  (Nimeguen),  ending  the  Dutch  war,  the 
p.arties  in  which  had  been  France,  England,  Sweden,  some  of  the  smaller 
states  of  the  Empire  on  the  one  hand,  and  Holland,  the  Elector  of  Bran- 
denburg, Spain,  the  Emperor,  Denmark,  and  some  of  the  smaller  German 
states  on  the  other.  The  English  king  (Charles  II.)  was  forced  by  the 
Parliament  to  make  peace  with  the  Dutch  in  1G74,  and  a close  alliance  be- 
tween the  two  powers  was  arranged  at  AVestminster  (March  3,  1G78).  The 
treaties  made  at  Nimeguen  were  those  of  Holland  with  France,  August  10, 
1678,  of  Sjiain  with  France,  September  17,  of  the  same  year,  of  the  Em- 
peror with  France,  and  also  with  Sweden,  February  5,  1679,  and  of  Holland 


APPENDIX  II. 


439 


with  Sweden,  October  12,  1G79.  Denmark  treated  with  France  at  Fon- 
tainebleau, September  2,  1G79,  and  wiili  Sweden  at  Lnnd,  September  2G, 
1G79.  The  Elector  of  Brandenburg  made  a treaty  with  France  and  Sweden 
at  St.  Gennaiii-cn-Layc,  June  29,  1079,  — not  to  mention  other  less  iin- 
jiortant  transactions.  (Dumont,  vii.,  1,  351,  etc.)  In  this  general  jiaeifica- 
tion,  (1.)  Holland  had  restored  to  her  all  the  places  taken  by  the  French 
in  the  war;  and  by  a separate  article  restitution  Avas  to  be  made  to  the 
Pritice  of  Orange,  of  Orange  and  other  estates  in  the  dominions  of  the 
French  king.  (2.)  Spain  got  b.ack  in  the  Netherlands,  Charleroi,  Binche, 
Ondenarde,  Alh,  Courlray  (see  Treaty  of  Aix-la-Chapelle,  IGGS),  the  land 
beyond  the  Meuse,  Ghent,  the  fort  of  Bodenhus,  the  district  of  Waes;  also 
the  town  and  duchy  of  Limburg,  the  towns  of  Leuve  and  St.  Ghilain,  and  in 
Catalonia  the  town  of  PuA  Ccnla.  Spain  ceded  to  Fi-ance  all  Franche  Comte, 
'S'alenciennes,  Cainbray  and  the  Cambresis.  Aire,  Popci'ingen,  St.  Outer, 
Ypern  (Ypres),  etc.  (3.)  'J'lie  Emperor  ceded  to  France  Freiburg  in  the 
Breisgau,  Aviili  riglit  of  road  from  Breisacb,  recovered  Philippsburg  for  the 
Jhiipire  (see  Treaty  of  M'estphali:i),  procured  lint  restoration  of  the  Duke  of 
Lorrtiine  to  his  duchy  and  estates,  yet  only  on  the  most  ouerons  conditions, 
anil  engaged  to  jmt  the  Fiirstenbnrg  princes  in  the  state  in  which  they  were 
before  the  war.  As  regards  its  eastern  borders,  France  had  a very  great 
advantage  by  these  treaties,  especially  at  the  cost  of  Spain.  (4.)  Sweden 
recovered  what  Denmark  had  conquered,  Wismar,  the  isle  of  Rugen,  etc., 
and  the  Danes  engaged  to  restore  the  Duke  of  Holstcin-Gottorp  to  his  state 
before  the  Avar.  Sweden,  morever,  recovered  Avhat  the  Elector  of  Branden- 
burg bad  compiered  from  her  in  Hither  Pomerania,  but  gave  u[)  the  lands 
beyond  the  Oder,  e.xcept  the  tOAvns  of  Dam  and  Golnow.  (Sec  Peace  of 
IVestphalia.) 

I 1G97,  Se[)tember  20  and  October  30.  Peace  of  RysAvick,  made  at  a 
palace  near  the  Hague,  and  closing  a Avar  of  almost  ten  years’  duration, 
often  called  the  Avar  of  Orleans,  between  France  and  the  pi'inci|)al  poAvers 
of  Eurojic.  Soon  after  the  peace  of  Nimeguen,  Louis  XIV.,  by  means  of 
courts  erected  for  the  [turpo.se,  “reunited,”  r.s  it  was  called,  to  his  kingdom 
jj.arts  of  the  adjoining  foreign  territory,  seized  Slrasbnrg  in  1G81,  and  coni- 
uiitted  other  llagiiious  acts  of  aggi’ession.  Leagues  Avere  formed  against 
him,  but  amounted  to  nothing,  until  in  1C8G,  at  Augsburg,  many  of  the 
German  poAvers  concluded  one  for  mutual  protection,  Avhich  Avas  signed  at 
Vienna,  in  1G87.  The  ne.xt  year  Louis  began  open  Avar  by  invading  the 
Empire,  ui-ging  as  his  prete.xts  besides  this  le.agne  the  claim  of  his  sister-in- 
hiAv,  the  Duchess  of  Orleans,  to  the  allodial  ])ropci-ty  of  her  brother  who 
Avas  the  last  male  of  the  Simmern  braiAch  of  Electors  Palatine,  as  also  the 
indignities  offered  to  him  in  the  disputed  election  of  the  .archbishop  at 
Cologne.  To  oppose  him  an  alliance  AvasYoncluded  belAveen  Holland  and 
the  Em|)cror  and  Empire  at  Vienna,  J\lay  12,  1 G89,  to  Avhich  England  under 
William  HI.  and  Spain  afterward  acceded,  Avith  whom  the  Duke  of  Savoy 


440 


APP12NDIX  II. 


and  the  King  of  Denmark  acted  in  concert.  The  parlies  engaged  to  treat 
with  Louis  only  on  the  basis  of  the  treaties  of  Westphalia  and  of  the 
Pyrenees,  to  procure  the  restoration  of  the  Duke  of  Lorraine  to  his  rights 
in  full,  and,  . — in  a separate  article, — to  secure  to  the  Emperor  and  his 
heirs  the  succession  in  Spain,  if  Charles  11.  should  die  childless.  (Dumont, 
vii.,  2,  229-2110,  241,  2G7.) 

The  Peace  of  llyswick  consisted  of  treaties  of  France  with  England, 
Spain,  Holland,  and  the  Emperor  and  Empire,  with  which  last  peace  was 
not  effected  until  October  30,  1G97.  (Dumont,  vii.,  2,  399,  408,  381,  421.) 
(1.)  England  and  France  mutually  restored  what  had  been  taken  in  the  war, 
W’illiam  of  Orange  was  acknowledged  to  be  lawful  king  of  Great  Britain, 
and  Louis  promised  not  to  help  his  enemies,  i.  e.,  James  11.  (2.)  To  Spain 
France  restored  all  the  “ reunions  ” made  since  the  peace  of  Nimeguen, 
eighty-two  places  excepted,  together  with  the  conquests  of  the  war.  (3.) 
Holland  returned  Pondicherry  in  India  to  the  Ficnch  East  India  Company 
and  received  valuable  commercial  privileges  from  Fi-ance.  (4.)  The  French 
king  gave  up  all  his  “reunions”  made  from  the  Empire,  except  in  Alsace, 
which  lost  henceforth  all  connection  with  the  Empire,  and  became  an 
integral  part  of  France.  Another  article  gave  up  Strasburg  e.xpressly  to 
Fr  ance;  others  still  ceded  Breisach  and  Freiburg  to  the  Emperor,  Philipps- 
burg  to  the  Empire  (see  Peace  of  Westphalia),  restored  the  duchy  of 
Zweibrucken  (Deuxponts),  to  the  King  of  Sweden,  as  Count  Palatine  of 
the  Rhine,  and  hlumpelgard  (Montbcliard)  to  Wiirtemberg,  etc.,  pi-ovided 
for  the  Duke  of  Lorraine  on  the  terms  granted  to  his  father  by  France  in 
1670,  reinstated  the  Cardinal  Flirslcnburg  in  his  bi.diopric  of  Strasburg  and 
other  rights,  rased  a number  of  forts,  declared  the  navigation  of  the  Rhine 
free,  etc.  — An  earlier  treaty  of  August  29,  1696,  between  France  and  Savoy, 
was  confirmed  in  the  peace  of  Ryswi(  k,  in  which  Louis  agreed  to  give  back 
Pignerol  (see  Peace  of  West])halia,  Peace  of  Cherasco),  with  its  fortifica- 
tions demolished,  and  to  restore  the  conquests  of  the  war.  (Dumont,  vii., 
2,  368,  383,  Art.  xvi.  of  treaty  with  Holland.) 

In  the  fourth  article  of  the  treaty  with  the  Emperor  restoring  the  con- 
quests and  reunions  outside  of  Alsace  (Dumont,  vii.,  2,  422),  occurs  this 
clause:  “ rcligione  tamen  Catholica  Romana  in  locis  sic  restitutis  in  statu 
quo  nunc  est  remanente.”  During  the  French  occupation  of  these  districts, 
Protestantism  had  been  suppressed  by  force.  The  Protestants  protested 
against  this  peace  on  this  account,  anil  claimed  that  it  violated  the  Peace 
of  Westphalia  on  the  basis  of  which  it  was  made.  The  Diet,  however, 
ratified  it,  November  26,  1697,  but  added  in  a postscript  that  the  Catholics 
would  make  no  use  of  this  clause  against  the  Protestants.  The  clause,  more- 
over, was  said  to  relate  only  to  certain  churches  endowed  by  Louis  XIV. 
The  Emperor  confirmed  the  vote  of  the  Dii't  in  ratification  of  the  peace, 
but  passed  over  the  postscript  in  silence.  Soon  afterwai'd  the  French  min- 
ister edaimed  that  the  clause  related  to  churches  in  1,922  jilaces,  where  the 
chaplains  of  regiments  passing  through  had  said  mass. 


APPENDIX  II. 


441 


1698.  First  pni’iitidn  treaty,  concluded  at  the  Hn"uo,  Octolicr  11,  lie- 
twien  William  HI.  of  England,  Ilollainl,  and  Louis  XIV.  In  t',\i)i'c  t itiou 
of  tlie  death  of  Charles  II.  — the  last  of  the  Ilapsbiirg  line — without  lieirs, 
Will  iain,  doiihting  his  ability  to  prevent  Spain  from  coming  under  llie  eon- 
trol  of  France,  consents  to  a partition  of  the  Sitanish  monarchy.  In  gen- 
crtil,  Naples  and  Sicily  were  assigned  to  the  Dauphin  of  France,  the  duchy 
of  Mibin  to  the  Archduke  Charles  of  Austria,  second  son  of  the  Emperor, 
and  Spain,  with  the  Spanish  Netheilands  and  the  foreign  dependencies,  to 
the  eldest  son  of  the  Duke  of  Bavaria.  (Dumont,  vii.,  2,  442.) 

The  young  Bavarian  prince  died  February  8,  1699,  at  the  age  of  six.  A 
new  treaty  of  partition  between  the  same  powers  (London,  March  13,  the 
Hague,  March  25,  1700)  provided  in  general  that  Naples,  Sicily,  the  duchies 
of  Lorraine  and  Bar,  should  go  to  the  Dauphin;  the  Duke  of  Lorraine 
should  be  tiansferred  to  the  duchy  of  Milan;  the  crown  of  Spain,  the 
Netheilands  and  Indies  should  fall  to  the  Archduke  Charles.  (Dumont, 
u.  s.,  4 7 7.)  For  the  c'aims  or  want  of  claims  of  the  parties  obtruded  upon 
Spain  by  these  treaties,  comp.  De  Garden,  ii.,  220  IT.;  Smyth,  “ ]\Iod.  His- 
tory,” lecture  x.xiii.  No  grosser  instance  of  intervention  is  to  be  found  in 
history,  unless  it  be  the  partition  of  Poland. 

1699,  January  26.  Peace  of  Carlowitz,  consisting  of  a tn-aty  of  the  Sultan 
for  a twenty-five  years’  truce  with  the  Emperor,  of  a treaty  of  the  Sultan 
with  the  King  of  Polanil,  and  of  one  with  Venice  negotiated  by  the  ambas- 
sadors of  the  two  Christian  powers.  Prince  Eugene  having  annihilated 
the  Turkish  army  at  Zentha,  Se[)teinber  11,  1697,  the  Sultan  acknowledged 
Transylvania  to  be  an  Austrian  province,  and  agreed  that  the  sou  hern 
bank  of  the  Danube  should  separate  his  dominions  from  Hungary,  etc. 
Venice  retained  jiossession  of  what  it  held  in  Greece  e.xcept  Lepanto,  and 
in  Dalmatia,  — where  the  limits  were  fixed  by  a series  of  forts  ceded  to 
the  Republic,  — Castelnuovo  and  Kisano,  near  Cattaro,  remained  A'enetian 
(Dumont,  vii.,  2,  448-458.) 

1713  and  1714.  Treaties  of  Utrecht  and  of  Rasi  adt,  ending  the  war 
of  succession  to  the  crown  of  Spain,  which  began  in  1701.  Charles  II.  of 
Spain  had  made  a testament  in  favor  of  the  electoral  prince  of  Bavaria  as 
his  successor,  before  tbe  death  of  that  hoy  in  1699.  Afterward  lie  inclined 
to  the  .Archduke  Charles  of  Austria,  and  made  a avill  to  that  effect,  but  as 
Austria  delayed  consenting  to  fulfill  the  conditions,  he  was  persuaded  by 
tbe  Frencb  party  at  his  court  to  burn  the  will,  and  to  bestow  the  crown 
upon  Philip,  Duke  of  Anjou,  second  son  of  the  Dauphin  of  France,  or  in 
case  of  his  death  without  heirs  or  bis  elevation  to  the  throne  in  his  own 
country,  upon  his  ne.xt  brother,  the  Duke  of  Berry,  and  so  iu  succession 
on  the  Archduke  Charles,  and  on  the  Duke  of  Savoy  and  his  children  wdio 
Avere  descended  from  the  sister  of  Philip  H.  of  Spain.  At  all  events,  the 
Spanish  niouarehv  was  to  be  kept  entire. 

The  King  of  Spain  died  November  1,  1700,  and  Louis  XIV.  decided,  a 


442 


APPENDIX  II. 


few  weeks  afterward,  to  aecept  the  testament  for  liis  o-rnndson,  al'lioii.h  in 
the  spriiie:  of  the  same  year  lie  liad  been  a party  to  ihe  tieaty  of  partiiiim, 
not  to  speak  of  ihe  reiuineiations  made  in  the  treaty  of  llie  Pyreni'es.  (See 
that  treaty.)  England  and  other  states  at  first  reeognized  the  Bombon  in 
the  way  of  eeremony  as  king  of  Spain  ; but  Louis  Having  aioided  gi'ing  a 
gaiaranty  that  the  crowns  of  France  and  S[)ain  .'^lionhl  he  kept  apart,  having 
also  on  the  death  of  Janies  II.  of  England  (September  IG,  1701),  in  viola- 
tion of  the  Peace  of  llyswiek,  acknowledged  his  son  as  king  of  England,  a 
war  was  inevitable,  which  the  death  of  William  III.  (March  8,  1702)  couhl 
not  pri'vent.  An  understanding  between  'William,  who  was  the  centre  of 
the  opposition  to  Franco,  and  the  Emperor,  led  to  the  Grand  Alliunce,  formed 
Seplemher  7,  1701,  to  which  Great  Britain,  Holland,  and  the  Emperor  were 
the  original  parties  ; and  to  which,  afterward,  Denmark,  the  Elector  of 
Brandenburg  (or  king  of  Prussia),  Portugal,  Sweden,  the  Empire,  Savoy', 
etc.,  acceded.  The  main  points  of  the  alliance  were,  to  compensate  the 
Emperor  for  the  loss  of  the  Spanish  monarchy,  and  so  to  seize  on  the  Span- 
ish Netherlands,  the  duchy  of  IMilan,  the  two  Sicilies,  and  the  ports  of  Tus- 
cany; to  secure  to  England  and  Holland  all  the  eonquests  they  mieht  make 
in  Spanish  America;  and  to  maKe  peace  with  France  only  on  condition  that 
the  two  crowns  of  France  and  Spain  should  never  be  united.  The  princi- 
pal allies  of  France  were  the  Elector  of  Bavaria  and  his  brother  the  Arch- 
bishop of  Cologne.  The  Emperor  invaded  Italy  in  1701.  War  was  de- 
clared by  England,  May  4,  1702. 

The  Peace  of  Utrecht  consists  of  separate  treaties  made  by  France  with 
Great  Britain,  Portugal,  Prussia,  Savoy,  and  Holland  (April  11,  1713),  and 
by  Spain  with  Great  Britain  (July  13),  and  with  Savoy  (August  13)  which 
were  followed  by  treaties  of  Spain  with  Holland  (June  2G,  1714),  and  with 
Portugal  (February'  C,  1715),  signed  at  the  same  place.  The  treaty' of 
Rastadt  (March  6,  1714),  made  by  the  Emperor,  for  himself  and  the  Em- 
pire, with  France,  was  modilied  slightly'  and  finished  at  Baden  in  Switzer- 
land, September  7,  1714. 

The  most  important  features  of  these  treaties  were  the  following  : — 

1.  In  her  treaty  with  Great  Britain  (Dumont,  viii.,  1,  339),  France  ceded 
or  restored  to  that  kingdom  Hudson’s  Bay  and  Straits,  St.  Kitts,  Nova 
Scotia  (Acadia),  Newfoundland  with  the  adjacent  islands  — reserving,  how- 
ever, Cape  Breton  and  the  islands  in  the  mouth  of  the  St.  Lawrence,  with 
the  right  to  catch  and  dry'  fish  on  a considerable  paH  of  the  Newfoundland 
coast.  Dunkirk  is  to  be  dismantled  and  its  harbor  filled  up.  The  Han- 
overian succession,  as  settled  by'  Parliament,  is  acknowledged.  The  recip- 
rocal renunciations,  by  Philip  V.  of  Spain,  of  the  French  crown,  and  by  the 
dukes  of  Berry  and  Orleans  of  the  Spanish,  arc  inserted  in  the  treaty,  and 
it  is  declared  to  be  an  inviolable  law  that  the  two  crowns  shall  remain 
separate  and  disunited.- — In  a commercial  treaty  of  the  same  date  between 
the  same  powers  (Dumont,  u.  s.,  345),  it  is  stipulated,  that  between  the 


APPENDIX  n. 


443 


parties  the  ships  of  each  shall  be  free  to  carry  goods  not  contraband,  and 
pi'i'soiis  not  military,  jicriaiiiing  to  the  enemies  of  the  oilier.  'J  be  same 
priiu'lple  is  saiieiioni'd  in  the  eommereial  treaty  between  France  ami  llul- 
laml  of  ibe  same  dtite.  (Coni|).  108.  190,  .sa//m.) 

In  the  ti'eaty  between  Sjiain  and  Great  IJriiain  (Dumont,  n.  s.,  303), 
Gibi’idtar  and  Minorca  with  Port  iMahon  are  ceded  to  the  latter  power;  the 
jterpeimil  scpaiMlion  of  the  French  and  Spanish  crowns  is  soleinuly  pledgeil; 
Spiiiii  engtiges  not  to  tninsfer,  to  France  or  any  other  nation,  any  land  or 
lordship  in  America;  and  Great  Britain  promises,  in  case  the  line  of  Savoy 
shall  die  out,  to  do  her  best  in  order  to  reunite  Sicily  with  Spain.  (See 
treaties  with  Savoy.)  'I'be  12th  article  has  had  an  unhappy  celebrity  ; it 
gives  to  a British  company,  for  the  space  of  thirty  years  from  the  d;ite  of 
the  treaty,  a contract  (“el  jiacto  de  el  assiento  de  negros  ”)  for  e.\- 
clusivcly  snjiplying  Spanish  America  with  negroes,  on  the  same  terms 
under  which  the  French,  i.  e.,  the' French  Guinea  Company,  founded  in 
1 701,  had  acted. 

2.  In  the  treaty  of  France  with  Holland  (Dumont,  ti.  s.,  3GC),  France 
engages  to  put  into  the  hands  of  Holland  for  the  purpose  of  being  trans- 
ferred to  the  house  of  Austria,  the  Spanish  Netherlands,  as  they  were  after 
the  Treaty  of  Ryswick,  e.xcept.  a part  of  Guelders  ceded  to  Prursia,  tinil  :i 
tract  in  Luxemburg  or  Limburg  to  be  formed  into  a iirincipaliiy  for  the 
Princess  Orsini,  — which  last  arrangement,  however,  throuili  the  opposi- 
tion of  Austria,  never  took  effect.  Of  the  French  Netherlands,  Tournay, 
Fumes,  and  their  districts,  Y|)res,  Poperingen,  etc.,  were  ceded  on  like 
terms  to  Holland.  France  engaged  to  make  the  Elector  of  Ba  varia  abandon 
any  claim  he  had  to  the  Low  Countries  from  an  earlier  Spanish  cession  of 
1702  and  1712;  but  the  town  and  duchy  of  Lnxembtirg,  Namur  and  its 
count)’,  and  Charleroi,  were  to  be  under  his  sovereignty  until  he  should  be 
restored  to  his  estates  and  dignities  in  Germany.  The  separation  of  the 
crowns  of  Spain  and  France  was  pledged  both  in  this  treaty  and  in  the 
later  one  of  Spain  with  Holland  (Dumont,  u.  s.,  427),  which  was  delayed 
by  the  scheme  of  the  Princcs.s  Orsini,  who  ruled  Philip  V.,  to  get  for  her- 
self a sovereignty  in  the  Netherlands.  In  this  treaty  Spain  engaged  to  keep 
all  other  nations,  except  the  Dutch,  from  trading  Avith  the  Spanish  East 
Indies. 

3.  The  treaties  wi:h  Portugal  arc  of  less  iniportancc.  (Dumont,  u.  s., 
353,444.)  France  renounces  in  favor  of  Por;ugal  all  right  to  the  tract 
called  the  Cap  du  Nord,  between  the  Amazon  ami  the  Vincent  Pinson  or 
Ja]ioc,  and  admiis  that  the  two  shores  of  the  Amazon  and  the  right  to 
navigate  it  belong  to  ihat  .'■t  ite.  Sjiain  cedes  to  Portugal  the  territory  and 
colony  of  S.  Sacramento  on  the  north  shore  of  the  La  Plata. 

4.  France  cedes  to  the  king  of  Piussii,  in  virtue  of  jiow’cr  received  from 
Spain,  Upjier  or  .Sjianish  Guelders,  and  admits  bis  right  to  the  jirincipality 
of  Neufchatel  (or  Neuenburg)  and  Valengin  in  Switzerland.  He,  on  the 


444 


APPENDIX  11. 


otlior  Innd,  rononnccs  nil  liis  pretcn.sions  to  tlio  pvinripnlity  of  Orancrc  and 
its  (lf])tMHleiit  lands  in  France,  but  ninj-  bear  the  arms  and  title.  (Dumont, 
u.  s.,  3.3;; ) 

5.  Spain  (Dumont,  u.  s.,  401)  confirms  to  the  Duke  of  S:tvoy  the  island 
of  Sicih' — already  ceded  by  a special  instrument  made  at  i\Iadi'i  I,  eJnne  10, 
1713.  (Dumont,  u.  s.,  380.)  Hie  sovereignty  is  to  follow  the  line  of  the 
duke  and  his  male  descendants,  and  — this  hein;;-  extinct — the  male  line  of 
the  Piinee  of  Carignan  and  his  brother.  If  the  Savoy  line  die  out,  the 
island  is  to  revert  to  Spain,  and  if  the  Spanish  line  die  out  in  Spain,  the 
liouse  of  Savoy  shall  succeed  in  that  kingdom.  France  recognizes  the  ces- 
sion of  Sicily  and  restores  to  Savoy  the  territory  conquered  in  the  war:  the 
bonnd.iry  of  1'  ranee  toward  the  county  of  Nice  and  Piedmont  is  determined 
by  the  summits  of  the  Alps;  and  the  cessions  made  to  the  Duke  by  the  Em- 
peror in  1 103,  — namely,  the  Mantuan  part  of  Montferrat,  the  provinces  of 
Alessandria  and  Valentia,  the  land  between  the  Po  and  the  'J'aiiaro,  the 
Lomellina,  etc.,  — are  confirmed  in  both  treaties.  (Dumont,  u.  s.,  3G2.) 
'Phe  Duke  of  Savoy  was  crowned  King  of  Sicily  at  Palermo,  in  1713,  but 
was  not  acknowledged  either  by  the  Pope  or  the  Emperor. 

I5y  the  treaties  of  llastadt  and  Baden  (Dumont,  u.  s.,  pp.  415,  43G), 
France  engagi'S  to  leave  the  Emperor  master  of  the  jilaces  and  .dates  which 
he  occupies  in  It:dy,  — namely,  the  kingdom  of  Naples,  the  duchy  of  Milan, 
the  idand  of  Sardinia,  the  ports  of  Tuscany,  — consents  that  he  shall  take 
po-'session  of  the  Sp:ini>h  Netherlands  according  to  the  treaty  with  Hol- 
land. u'ives  up  ,\lt-Brei-ach,  Fi-eiburg,  the  fortress  of  Kehl,  according  to  the 
stipid  iti  )ns  of  the  Treaty  of  llyswick,  which  is  made  the  ba-is  of  arrange- 
ments touching  Gi'i’inany.  'I  he  Em[)cror  eii'i'ages  to  restore  the  Duke  of 
Bav.'iria  and  the  Arehbisho]i  of  Cologne  to  their  state  bedore  the  war.  By 
the  Treaty  of  Baden,  the  Emperor  is  allowed  to  retain  possession  of  the 
duchies  of  Mantua  and  Mirandola,  and  the  town  of  Coimnachio.  No  treaty 
arrangements  were  made  between  the  Emperor  and  Spain,  the  former  de- 
laying to  acknowledge  the  Bourbon  king,  and  Philip  V.  not  consenting  to 
the  dismemberment  of  the  Spanish  monarchy  by  which  the  Emperor  was  a 
gai'ier. 

The  hnvri'>r  Irenl'e^.  thrro  in  nundier,  deserve  a brief  notice  in  this  place. 
An  article  of  ih  ' flrand  .Alliance  having  jiromi.sed  to  ih'c  Dutch  a baii'ier 
a'jf.'iiiist  France,  the  two  first  hariicr  treaties,  made  October  ’iO,  tlCiO,  and 
.lannary  .30,  1713,  that  is,  before  the  Piaice  of  Utrecht,  between  Gicat 
Britain  and  the  States-Gcni'ral,  contemplated  <givin.i:  to  the  latter  a number 
of  foriifieil  ])iaccs  in  the  Spaiush  Netherlands,  with  revcni'es  for  the  ]>ay- 
ment  of  I he  garrisons,  to  he  drawti  from  the  counliy  itself;  and  the  first 
treaty,  ly  a sepa,rate  arli.-le,  gave  them  the  hope  of  a('(|uiring  Upper  Gncl- 
ders  anil  some  other  ])laces.  The  sceond  Ircaly  diminished  the  ntimher  of 
forts  they  were  to  hold,  and  said  nothing  of  Gnelderland,  which  had,  since 
the  first  treaty,  been  promised  to  Prussia.  Both  treaties  pledge  the  States- 


APPENDIX  n. 


445 


General  to  the  maintenance  and  defense  of  the  Protestant  succession  in 
England,  as  by  law  established. 

Both  these  treaties  come  to  nothing.  The  third,  signed  at  Antwerp  by 
Austria,  Great  Britain,  and  the  Dutch,  November  15,  1715,  provides  that 
the  latter  shall  transfer  to  Austria  the  Spanish  Netherlands,  both  the  ter- 
ritory heltl  by  Charles  II.  of  Spain,  and  that  ceded  by  France,  — Austria 
engaging  that  they  shall  remain  under  Austrian  sway  and  never  pass  over 
to  Franco  or  anv  other  power.  An  army  of  about  30,000  men  shall  be 
maintained  there  by  the  Emperor  and  the  Dutch;  the  former  to  furnish  two 
thirds  of  the  force,  and  the  latter,  one  third.  The  Dutch  shall  garrison 
exclusively  Namur,  Tournai,  Menin,  Fumes,  Ypres,  AVarneton  and  the  fort 
of  Knock,  and  in  common  with  Austria  Dendermonde.  They  may  repair 
and  forlify  the  towns  of  the  barrier,  but  not  build  any  new  forts  without  the 
Emperor’s  consent.  Ho  agrees  to  let  them  occupy  such  forts  and  territory, 
and  to  make  such  intrenehments  and  inundations,  beyond  their  frontiers,  in 
the  Austrian  Netherlands,  as  may' be  necessary  in  case  of  the  invasion  of 
those  provinces.  He  also  cedes  to  them  Venlo  and  some  other  places  in 
Gueldei-s,  and  engages  to  pay  for  the  support  of  their  troops  1,250,000 
Dutch  florins,  liypolliecated  on  the  revenues  of  the  Netherlands.  It  is  also 
agreeil  (Article  XXVI.)  that  ships  and  cargoes,  going  between  Great  Brit- 
ain or  Holland  and  the  Austrian  Netherlands,  shall  pay  the  same  duties  of 
entry  and  exit  as  at  present,  until  the  three  powers  shall  enter  into  other 
arrangements  by  a commereial  treaty,  to  be  made  as  soon  as  possible, — 
which  treaty,  however,  was  never  effected.  Great  Britain  confirmed  and 
guaranteed  this  treaty.  From  the  failure  to  make  the  commercial  ar- 
rangement above  spoken  of  Austria  drew  a pretext  for  regarding  the  bar- 
rier treaty  as  annulled.  (Dumont,  viii.,  1,  24.3,  322,  458.) 

1717,  January  4.  The  triple  alliance  between  France,  Great  Britain,  and 
Holland,  to  maintain  the  treaty  of  Utrecht  and  defend  one  another  in  case 
of  attack.  France  also  engaged  to  render  no  succor  to  the  Pretender  and 
to  induce  him  to  go  beyond  the  Alps.  (Dumont,  viii.,  1,  484.) 

1718,  August  2.  The  quadruple  alliance,  concluded  at  London  by  France 
and  Great  Britain,  and  so  called  as  intended  to  include  Holland,  which 
acceded,  February  IG,  1719,  and  the  Emperor,  who  accepted  the  terms  of 
the  allianci',  September  IG,  1718.  (Dumont,  u.  s.,  531.)  As  yet  no  peace 
liad  been  made  between  the  Emperor  and  Spain.  The  former  was  dissatis- 
fied with  the  arrangements  made  in  Italy,  especially  with  the  giving  of 
Sicily  to  the  Duke  of  Savoy.  Spain,  nov/  under  the  influence  of  the  in- 
triguing and  ambitious  Cardinal  Alberoni,  aimed  to  recover  what  she  had 
lost  by  the  Peace  of  Utrecht,  and  for  this  purpose  sought  to  disturb  the  pol- 
itics of  Fiance  and  England.  Sicily  and  Sardinia  are  invaded  by  Spanish 
troops,  but  the  fleet  of  that  kingdom  having  been  almost  destroyed  by  the 
English,  and  the  forces  of  both  Franco  and  England  having  entered  Spain, 
the  king,  finding  his  projects  too  great  for  his  resources,  gives  way,  dis- 


446 


APPENDIX  II. 


misses  Alberoni,  and  accedes  to  the  alliance  in  1720  (Januai-y  2G).  The 
Dnke  of  Savoy  liad  done  the  same  in  1718.  Defensive  treaties  in  1721 
made  hy  Spain  witli  France  and  Great  Britain,  complete  the  arrangements 
with  those  powers.  In  conformity  with  the  (piadiaiple  alliance,  and  with 
other  treaties  made  in  the  same  spirit,  Spain  renonneed  the  Low  Countries 
and  the  Spanish  jiart  of  Italj';  the  Empeior  renoimeed  the  monareli}- of 
Spain,  ceded  to  Philip.  V.  hy  the  peace  of  Utrecht,  and  acknowledged  hinr 
as  lawful  sovereign  of  that  country;  Savoy  and  the  Emperor  e.xehanged 
Sardinia  and  Sicily  with  one  another;  ami  S])ain  renounced  its  right  of 
reversion  to  Sicily  in  e.xchange  for  a similar  right  to  Sardinia.  Leghorn 
should  be  a free  port  in  perpetuity,  and  the  Italian  duchies  of  Tuscany, 
Parma,  and  Piacenza,  where  the  male  lines  of  the  Medici  and  Farnese 
families  were  likely  to  become  extinct,  were  to  he  regarded  as  male  fiefs 
of  the  Empire,  the  investiture  of  which  should  he  given  to  Don  Carlos  of 
Spain,  etc.,  and  in  no  case  pertain  to  the  crown  of  Spain. 

Thus  hy  the  Peace  of  Utrecht  and  these  auxiliary  treaties,  (1)  a harrier 
was  erected  in  favor  of  Holland  against  France  hy  giving  the  Spanish 
Netherlands  to  Austria;  (2)  France  and  Spain  could  never  he  united  under 
one  monarch  hy  the  public  law  of  Enroiie;  (3)  the  Emperor  I'ccovered  some 
of  the  old  Germanic  influence  in  the  affairs  of  Italy;  (4)  the  Duke  of  Savoy, 
with  an  accession  of  power  as  king  of  Sardinia,  became  a stronger  cheek 
against  any  designs  of  France  upon  Italy,  and  against  Austrian  predomi- 
nance in  that  peninsula.  The  remaining  minor  differences  between  the 
Emperor  and  Spain  were  discussed  at  the  Congress  of  Camhray  (from  1722, 
onward). 


TREATIES  OF  THE  AGE  OF  ENGLAND’S  MARITIME  PREPONDERA.NCE 
AND  OF  THE  GROWTH  OF  PRUSSIA. 

1718,  July  21.  Peace  of  Passarowitz,  between  the  Emperor  and  the 
Sultan,  after  Prince  Eugene’s  victory  at  Peterwardein  and  capture  of  Bel- 
grade. (Dumont,  u.  s.,  520.)  Austria  came  hy  this  peace  into  possession 
of  the  Bannat  of  Temeswar,  of  Belgrade,  and  of  a portion  of  Servia,  AVal- 
lachia,  etc. 

1721,  August  30,  Peace  of  Nystadt  in  Finland  between  Sweden  and  the 
Czar,- — one  of  several  treaties,  in  which  Sweden,  now  controlled  hy  the 
estates  of  the  realm,  made  terms  with  its  neighbors.  After  the  death  of 
Charles  XII.  and  after  the  fall  of  Gortz,  the  intriguing  ally  of  Alberoni, 
Sweden,  in  1710,  yielded  to  the  King  of  England,  as  Elector  of  Hanover, 
the  duchies  of  Bremen  and  IVerden  (see  Peace  of  AVest[iliaIia)  for  a million 
rix  dollars  (Dumont,  vili.,  2,  15);  in  1720,  February  1,  to  Prussia,  Stettin 
and  the  lands  in  Pomerania  between  the  Oder  and  the  Pehne,  etc.,  for  twice 
that  sum  (Dumont,  u.  s.,  21);  in  the  same  year  to  Denmark  the  rieht  of 
toll  over  Swedish  ships  in  the  Sound  and  Belts  with  a payment  of  000,000 


APPENDIX  II. 


447 


rix  dollars,  promising:  also  not  to  interfere  as  to  Selilesn-ig  and  (lie  Duke 
of  llolstein-dottorp,  in  consideration  of  Denmark’s  abandonment  of  its 
Su'edisli  conquests.  (Dumont,  u.  s.,  20.)  To  this  peace  Eranee  and  Eng- 
land were  guarantees.  In  the  Peace  of  Nystadt  (Dumont,  u.  s.,  3G),  Sweden 
c(*ded  to  llnssia  Livonia,  Estlionia,  Ingeiinanlaml,  part  of  Carelia,  liiga. 
Revel,  Wihorg,  with  other  towns  and  forts,  the  isle  of  Oesel,  etc.,  and  re- 
ceived liaek  other  )iarts  of  Finland  which  Peter  the  Great  had  conquered, 
with  two  million  rix  dollars.  Sweden  enjoyed  ]ieaco  fur  some  time  after- 
wards, hut  fell  thenceforth  in  political  importance  below  Prussia  and 
Russia. 

1735,  October  3.  Preliminary  treaty  of  Vienna,  definitively  signed  No- 
vember 18,  1738,  between  the  king  of  France  and  the  Emperor,  to  which 
the  kings  of  Sardinia  and  of  Spain,  and  the  actual  occupant  of  Naples  and 
Sicily,  Don  Carlos,  acceded.  By  this  treaty  the  Duke  of  Lorraine,  upon 
the  impending  extinction  of  the  Medici  family  in  the  male  line,  was  to  be 
constituted  Grand  Duke  of  Tuscany,  with  right  of  succession  in  his  family; 
and  the  exiled  King  of  Poland,  Stanislaus  Lescinsky,  father-in-law  of  Louis 
XV.,  having  abdicated  his  royal  office,  was  to  be  put  in  possession  of  the 
duchy  of  Bar,  and  of  that  of  Lorraine  also  when  the  above-mentioned 
transfer  of  its  duke  should  take  effect.  On  the  death  of  the  Polish  king 
these  duchies  were  to  be  united  to  the  kingdom  of  France.  Naples  and 
Sicily,  with  the  i)orts  of  Tuscany  possessed  by  the  Emperor,  were  ceded  to 
Don  Carlos,  eldest  son  of  Philip  V.  of  Spain,  by  his  second  marriage  with 
Elizabeth  Farnese,  who  thus  founded  the  second,  or  Neapolitan,  line  of 
Spanish  Bourbons.  The  King  of  Sardinia  gained  the  territory  of  Novara 
and  Tortona  as  fiefs  of  the  empire,  with  the  territorial  superiority  in  the 
dlsti  ict  of  Langhes,  and  the  Emperor  acquired  Parma  and  Piacenza  in  full 
property.  Fi-ance  guaranteed  the  Prar/ina'ic  Sanction  of  the  Emperor 
Charles  VL,  and  most  of  the  powers  of  Europe  at  different  times  did  the 
same  thing.  By  this  sanction,  having  no  male  heirs,  he  constituted  his 
eldest  daughter  the  inheritor  of  the  entire  mass  of  the  Austrian  monarchy, 
and  for  the  sake  of  it  consented  to  the  abandonment  of  a large  portion  of  his 
dominions  in  Italy,  as  well  as  to  the  incorporation  of  Lorraine  in  France. 
(Wcnck’s  Codc.x  Juris  Gent.,”  i.,  pp.  1-88.) 

1742,  June  11.  Preliminary  Peace  of  Breslau,  and  July  28,  definitive 
Peace  of  Berlin  between  Frederick  II.  of  Prussia  and  Maria  Theresa.  Aus- 
tria ceded  all  Silesia,  lower  and  upper  (not  itu  hiding  the.  principality  of 
Tcs(  hen,  the  town  of  Troppau,  the  tract  beyond  the  Oppa,  and  (ho  jMora- 
vian  disiricts  cnclo.sed  in  Upper  Silesia),  together  with  the  county  of  Glatz. 
I'rederick  to  jiay  the  interest  on  the  late  Emperor’s  Silesian  debt;  and  re- 
ligion to  remain  as  it  was.  The  Peace  of  Dresden  (December  25,  1745) 
confirmed  that  of  Bre.slau,  and  Fredciack  acknowledged  Maria  Theresa’s 
husband,lhe  Gi-an  1 Duke  of  Tuscany,  as  Emperor.  An  act  of  the  King  of 
England  guaranteeing  Silesia  to  Prussia,  accompanies  the  treaty.  A treaty 


448 


APPENDIX  II. 


between  Saxony  and  Prussia,  made  at  the  same  time  and  place,  Fecimed  ihe 
payment  of  a million  rix  dollars  from  the  former  to  the  latter,  with  other 
advantages.  (Wenek,  i.,  734  et  ser/..  ii.,  191  e/  xf'/-) 

1 748,  April  30.  Preliminary,  and,  October  IS,  definitive  Peace  of  Ai.x- 
la  Chapelle,  between  France,  Great  Ei  itain,  and  Holland  — Sjiain,  Austi'ia, 
Sarilini  a,  Genoa,  IModena  being  accessaries.  (Wkmck,  ii.,  310  e/  This 

peace  ended  the  war,  which  grew  originally  out  of  the  Ansliian  succession, 
l)y  a mutual  restilu'ion  of  eomj'aests,  and  general  renewal  of  former  ini- 
|)orlant  treaties.  ’J'he  dneliies  of  Parma,  Piacenza,  and  Guastalla  were 
assigned  to  the  Spanish  infante  Don  Philip,  atid  were  ceded  by  tlieir  present 
jiossessors,  the  Empress  and  the  King  of  Sardinia  (the  latter  as  holding  by 
the  Treaty  of  IVorms  in  174  3 the  city  and  part  of  the  duchy  of  Piacenza), 
with  the  right  of  reversion  to  the  said  present  possessors  in  case  Don  Philip 
should  die  without  male  children,  or  in  case  Ihe  King  of  the  Two  Sicilies 
should  iidierit  the  throne  of  Spain.  Among  the  renewals  of  former  stipula- 
tions, that  of  the  assiento  contract  (see  Treaty  of  Utrecht)  was  expressly 
named,  a misunderstanding  concerning  which  had  been  one  of  the  causes 
of  the  war  with  S[)ain  on  the  part  of  England  in  1739.  “ Never,  perhaps,” 

says  Lord  Mahon,  sjieaking  of  this  peace,  “ did  any  war,  after  so  many 
great  events,  and  so  large  a loss  of  blood  and  treasure,  end  in  rejdacing  the 
nations  engaged  in  it  so  nearly  in  the  same  situation  as  they  held  at  first.” 

1759,  October  3.  Treaty  of  Naples  between  Austria  and  Charles  III.  of 
Spain  and  the.  Two  Sicilies,  The  Two  Sicilies  can  never  be  united  to  the 
crown  of  Spain,  except  in  case  the  lino  of  Spanish  kings  of  the  present 
house  shall  he  reduced  to  one  person,  and  shall  then  be  separated  again, 
as  soon  as  a prince  shall  be  born  who  is  not  king  of  Sjjain,  nor  heir  pre- 
sumj)live.  (Wenck,  iii.,  200.) 

1701,  August  15.  Treaty,  at  first  secret,  between  France  and  Spain, 
known  as  the  Family  Comj)act,  to  which  the  accession  of  the  King  of  the 
Sicilies,  and  the  Duke  of  Paiana,  the  Spanish  king’s  two  sons,  was  to  be 
procured,  but  no  one  except  a Bourbon  .should  be  invited  to  join  in  it. 
This  treaty  bound  the  j)arties  to  a very  close  offensive  and  defensive  alli- 
ance, with  the  furnishing  of  a definite  number  of  troops  on  demand  of  cither 
party,  and  contemplated  a guarantee  of  the  dominions  of  each,  and  of  the 
two  other  Bourbon  sovereigns.  (Wenck,  iii.,  278  et  scq.  ; Martens,  ‘‘lle- 
cueil,”  i.,  lG-28.)  In  a scoret  convention  of  the  same  date  it  is  said  to 
have  been  stipulated,  that  if  France  should  still  be  at  wmr  with  England 
on  the  1st  of  May,  17G2,  Spain  shou'd  declare  war  against  the  latter,  and 
that  France  should  at  the  same  time  restore  Minoi'Ca  to  Spain. 

17G3,  February  10.  Peace  of  Paris,  between  France,  Sjjain,  England, 
and  Portneal,  and  — 

17G3,  February  15,  Peace  of  Ilubertsburg  (a  hunting  chfiteau  near  IMeis- 
sen  in  Saxony).  By  the  first,  the  great  contest  between  France  and  Eng- 
land, all  over  the  world,  to  which  Spain  and  Portugal  became  p.arties,  was 


APPENDIX  II. 


449 


closed  greatly  to  the  advantage  of  England  ; and  by  the  seeond,  the  seven 
years’  war  of  Austria  and  its  powerful  allies  against  Frederick  the  Great. 
Of  these  allies,  France,  against  its  immemorial  policy,  had,  in  May,  1756, 
become  one. 

By  the  Peace  of  Ilubcrtsburg,  Prussia  ended  the  war  with  no  loss  of  ter- 
ritory, standing  where  she  stood  after  the  treaties  of  Dresden,  Berlin,  and 
Breslau. 

By  the  Peace  of  Paris,  England,  which  had  stripped  France  of  a consid- 
erable part  of  her  colonial  possessions,  retained  many  of  them,  and  received 
a large  accession  of  power,  especially  on  the  western  continent.  In  North 
America,  France  renounced  her  pretensions  to  Acadia,  ceded  Canada,  Cape 
Breton,  and  the  islands  and  coasts  of  the  St.  Lawrence,  retaining  the  right 
of  fishery  on  part  of  the  coast  of  Newfoundland,  according  to  a stipulation 
of  the  Treaty  of  Utrecht,  and  also  the  same  right  in  the  Gulf  of  St.  Law- 
rence, three  leagues  away  from  British  coasts,  and  at  a distance  of  fifteen 
leagues  from  Cape  Breton.  The  islands  of  St.  Pierre  and  Miquelon  also 
were  to  he  retained  by  France,  as  shelters  for  her  fishermen,  but  might  not 
be  fortified.  The  Canadian  Catholics  were  to  be  left  free  to  enjoy  their  re- 
ligion. (Articles  IV.-VI.)  The  middle  of  the  Mississippi,  from  its  source  to 
the  Iberville,  and  a line  thence,  through  Lakes  Jlaurepas  and  Pontchartrain 
to  the  Gulf  of  AIc.xico,  were  to  bound  the  territory  of  the  two  nations. 
Only  New  Orleans,  on  the  eastern  hank  of  the  Mississippi,  was  to  remain 
French.  (Article  Vll.)  By  a secret  treaty  with  Spain,  of  November  3,  1762, 
France  had  already  ceded  ].,onisiana  and  Now  Orleans  to  that  kingdom,  but 
jiossession  of  them  was  not  taken  until  1769.  This  was  a set-off  for  Spain’s 
cession  of  Florida  to  Great  Britain,  which  had  been  already  decided  upon, 
and  which  this  peace  concluded.  (Article  XX.)  Great  Britain  agreed  to  re- 
store to  France,  Guadeloupe,  Mariegalante,  Desirade,  Martinique,  Belleisle, 
St.  Lucia,  and  received,  by  way  of  cession,  Granada,  St.  Vincent,  Dominique, 
and  Tobago  (.Articles  VIII. , IX.),  in  the  West  Indies.  In  Africa,  Goree 
was  restored  to  France,  and  Senegal  retained.  (Article  X.)  In  the  East 
Indies,  the  forts  and  factories  owned  by  France  in  1749,  on  the  coasts  of 
Coromandel,  Orissa,  and  Malabar,  and  in  Bengal,  were  restored,  and  Franco 
engaged  not  to  build  forts  nor  keep  troops  in  Bengal,  and  renounced  all  ac- 
quisitions made  in  Coromandel  and  Orissa  since  1749.  (Article  XL)  Dun- 
kirk was  to  be  put  in  the  condition  stipulated  in  the  treaty  of  Ai.\-la- 
Chapello  and  earlier  treaties;  Minorca  to  bo  restored  to  the  English;  the 
places  occupied  in  Germany  by  the  French  to  be  evacuated  and  restored; 
Cuba,  as  far  as  conquered  by  England,  to  be  codeil  back  to  Spain;  the  forts 
erected  by  the  English,  in  the  Bay  of  Honduras  and  other  places  of  Spanish 
America,  to  be  demolished  ; but  their  woikmen  were  to  be  unobstructed  in 
cutting  and  transporting  dye  or  cam  wood,  and  no  right  of  fishery  near 
Newfoundland  was  to  be  allowed  to  Spanish  subjects.  (Articles  XII.-XIX. ; 
Wenck,  iii.,  329;  Martens,  “ Rec.,”  i.,  104-166). 

29 


450 


APPENDIX  ir. 


17G8,  iNIay  15.  A treaty  of  this  date,  between  Genoa  and  France,  yielded 
up  Corsica  to  the  sovereignty  of  the  latter  until  the  republic  should  demand 
its  restitution  and  pay  all  expenses.  The  oppressive  Genoese  goveininent 
of  the  island  led  to  prolonged  resistance,  which  was  subdued  by  French 
troops,  anil  the  islanders  preferred  to  bo  freed  from  the  Genoese  yoke. 
(Wenck,  iii.,  714;  Martens,  i.,  591.) 

1772,  July  15.  First  jiartitiou  of  Poland,  arranged  in  treaties  between 
Russia  and  Austria,  and  Rus.da  and  Prussia,  of  this  date,  made  at  St. 
Petersburg'.  The  treaties,  alleging  as  the  reasons  for  such  a step  the  se- 
curity of  the  neighboring  states  against  the  discords  and  intestine  war  of 
Poland,  declare,  1.  That  Russia  will  take  possession  of  the  remainder  of 
Polish  Livonia,  of  the  part  of  the  palatinate  of  Polock  which  is  east  of  the 
Dwina,  of  the  palatinate  of  Witepsk,  the  two  extremities  of  that  of  IMinsk, 
and  the  whole  of  that  of  Mscislav  (or  Mohilev).  The  Dwina  to  the  point 
where  the  provinces  of  Polock,  AVitepsk,  and  Minsk  meet,  thence  a straight 
line  drawn  nearly  to  the  source  of  the  Driijae  (or  Truzec),  the  course  of 
that  stream  and  of  the  Dnieper,  arc  to  be  the  boundaries  of  the  part  cut  off 
toward  Poland.  2.  Russia  guarantees  to  Austria  a territory  consisting  of 
East  Galicia  and  Lodomiria.  3.  Russia  guarantees  to  Prussia  Ponierellia, 
except  Dantzlc,  a part  of  Great  Poland  lying  westward  of  the  Netze,  the 
remainder  of  Polish  Prussia,  to  wit,  the  palatinate  of  Marienburg  with  the 
town  of  Elbing,  the  bishopric  of  AVarmia  (or  Ermehind),  and  the  palatinate 
of  Culm,  cxcci)t  Thorn,  which  is  to  remain  :i  part  of  Poland.  Poland,  by 
this  llagitious  transaction,  lost  live  million  inhabitants  and  a third  of  its 
territory.  The  Diet  of  Poland  was  brought  by  threats  to  give  its  rights  to 
a committee,  which  in  August,  17  73,  obeyed  the  will  of  the  great  powers, 
and  consented  to  this  dismemberment.  (Martens,  ii.,  89  et  seq.) 

1774,  July  21.  Peace  concluded  at  Kutschuk-Kainardji  (a  village  of 
Silistria),  between  Russia  and  Turkey.  Bessarabia,  AVallachia,  and  Mol- 
davia were  restored  to  Turkey,  which  engaged  to  protect  the  inhabitants  of 
the  two  principalities  in  their  religion,  etc  , to  receive  a chair/e  d affaires 
from  the  governor  or  ho.'ipodar  of  each  of  them,  and  to  allow  the  ministers 
of  Russia  resident  at  Constantinople  to  speak  in  their  favor.  Islands  also 
in  the  Archipelag.t,  taken  by  Russia,  with  places  occupied  in  Georgia  and 
klingrclia,  were  to  be  restored.  Russia  obtained  free  navigation  for  ships 
of  commerce  in  the  Black  Sea,  in  the  Propontis  or  Sea  of  IManuora,  in  the 
Danube,  and  in  the  Turkish  waters  generally.  The  forts  of  Jenicale  and 
Kertsch  in  the  Crimc.a..  the  town  of  Azow  with  its  district,  the  castle  of 
Kinburn  at  the  monlh  of  the  Dnieper,  wore  ceiled  to  the  same  power.  The 
two  powers  acknowledged  the  i'artars  of  the  Crimea,  Budjack,  Ivuban,  etc., 
to  be  independent.  Arrangements  wert!  made  for  a minister  resident  of 
Russia  at  Constantinople,  and  for  consuls  with  their  interjireters  in  places 
of  commerce.  (Martens,  ii.,  28G.  The  original  is  in  Italian.)  [This  treaty 
h.as  been  appealed  to  in  Russia,  as  giving  to  the  Czar  some  especial  right  of 


APPENDIX  II. 


451 


protection  over  tlie  Christian.s  in  tlic  Ottoman  Empire.  Ent  no  sm-h 
can  be  found  in  tlio  treaty.  In  Article  VI 1.,  “ (lie  Sublime  Porte  promises 
a firm  proleelion  to  the  Chri.'tian  relieiou  and  its  ebnrebes;  and  jjennits 
also  tile  imperial  court  of  Russia  to  make  on  all  oeeasions  various  re]ii'esen- 
talions  to  the  Porte  in  favor  of  the  undermentioned  elinreli  erected  in  Con- 
stantinople, notice  1 in  Article  XI\'.”  In  that  arliele  we  read  that  “the 
most  sniireme  court  of  Russia,  after  llu;  norm  of  ilie  olhci’  powers,  shall 
have  ])ower,  besides  the  domestic  church  (the  ambassador’s  domestic  cha|)el), 
jto  build  one  in  the  quarter  of  Galata,  in  the  .street  named  Eeg-Uglii,  which 
church  shall  be  ])ub!ie,  under  the  name  of  the  Russo-Greck  Church;  and 
this  shall  always  continue  under  the  j)roteclion  of  the  minister  of  this  Em- 
pire, and  be  c.x'cmpt  from  alt  restraint  and  outrage.”  In  Article  VIII.,  all 
subjects  of  the  Russian  Empire  are  allowed  to  visit  Jerusalem  fnmly,  with- 
out toll,  and  under  passport.  In  Article  XVI.,  in  -which  IMoldavia,  etc.,  are 
restored,  the  Sublime  Porte  promises  not  to  hinder  in  any  way  the  jjrofes- 
sion  of  the  Christian  religion,  nor  the  building  of  new,  nor  the  repaiiiiig  of 
old  churches,  to  restore  lo  the  monasteries  properties  taken  from  them,  to 
recognize  and  respect  the  clergy,  as  becomes  their  condition.  Arlicle  X\']I. 
CO)itains  the  same  stipulalions  in  regar.l  to  the  islands  of  the  Archipelago, 
now  restored;  and  so  speaTcs  also  Article  XXVIII.  in  legard  lo  religion, 
churches,  and  monasteries  in  Georgia  and  Mingrelia,  which  are  restored.  In 
Article  XXII.  the  two  Euq)ires  annul  all  former  treaties,  so  that  no  claims 
come  over  from  them.  Such  being  the  jnovisions  of  this  treaty  it  is  aston- 
ishing that  any  special  protectorate  of  Russia,  should  be  found  in  it.] 

177!),  May  l.'S.  Peace  of  Teschtn  in  Austrian  Silesia,  between  Frederick 
the  Great  of  Prussia  and  IMaria  Theresa,  Queen  of  Austria.  (Martens,  ii., 
CGI.)  The  electoral  Bavarian  lino  of  the  IVittelshaeh  house  being  near  ex- 
tinction, the  ne.xt  heir  was  the  Elector  Palatine,  who  had  no  legitimate  chil- 
dren, and  the  ne.xt  to  him  the.  Duke  of  Zweibriieken  or  Deux-Ponis.  The 
Emperor  Joscjih,  by  making  brilliant  provision  for  the  illegitimate  (dtildren 
of  the  Elector  Palatine,  induced  him  to  cede  beforehand  idl  Lower  Ba\  aria 
and  other  territory  to  the  house  of  Austria.  Frederick  the  Great,  having 
won  over  the  Duke  of  Deux-Ponts,  in  connection  with  the  elector  of  Saxony, 
and  the  Duke  of  Mecklenburg,  who  had  claims  to  the  Bavarian  inheritance, 
prepared  to  resist  this  aggrandizement  of  Austria  by  armed  force.  The 
war  of  “ the  Bavarian  succession  ” was  a show  of  arms  rather  than  a war, 
and  led  to  the  Pe.ace.  of  Teschen,  of  which  the  teians  were  dictated  by 
Fiedericlc.  They  -were,  in  brief,  (1.)  That  Aiistiia,  instead  of  a territory 
of  two  hundred  and  fifty  Gertnaii  sipiare  miles,  acquiretl  a di.sirict  of  thirty- 
four,  between  the  Danube,  the  Inn,  .and  tln^  IStdza.  (2.)  That  Prussia  was 
confirmed  in  the  right  of  succession  to  the  piincipalities  of  Bairenlh  and 
An-paeh,  if  the  existing  families  .'■houM  ftiil.  (;!.)  'Th.a.t  Saxonv  received 
a compensation  of  six  iniilion  guilders  for  its  claims,  and  iMecklenburg  ac- 
quired the  right  of  having  a supreme  coui’t  of  appeal  of  its  own.  The  Em- 


452 


APPENDIX  II. 


pcror  and  Empire  ■were  required  to  accede  to  the  tj’eaty,  to  which  also  the 
Empress  of  Russia  and  tlic  King  of  France  were  mediating  and  guaran- 
teeing parties.  (Comp.  § 109.) 

1780,  February  28.  Declaration  of  Russia  introducing  tlie  first  armed 
neutrality.  (iMartens,  iii.,  loS  et  seq.  Comp.  § 189.) 

1782,  November  30.  Preliminary,  and,  September  3,  1783,  definitive 
peace  signed  at  Paris,  in  which  Great  Britain  acknowledged  the  independ- 
ence of  ilie  United  States,  and  conceded  certain  rights  of  fishery.  (§  59.) 
Boundaries  were  fi.xed,  debts  incurred  loeforc  the  war  could  be  collected,  etc. 
(Martens,  iii.,  495,' 553.) 

1 783,  January  20.  Preliminary  treaties  of  the  Peace  of  Versailles  be- 
tween Great  Britain  on  the  one  part,  and  France,  Spain,  and  (September  2, 
1783)  Holland  on  the  other.  Definitive  treaties  of  Versailles,  September  3, 
1783,  between  Great  Britain,  France,  and  Spain.  To  France,  Great  Britain 
restored  the  islands  of  St.  Pierre  and  Miquelon  in  full  property,  reaffirmed 
the  French  rights  of  fishery  near  and  on  Newfoundland,  as  mentioned  in  the 
treaty  of  Utrecht,  restored  St.  Lucia,  and  ceded  Tobago  in  the  WT'St  Indies, 
and  recovered  Grenada,  St.  Vincent,  St.  Domini(jue,  St.  Kitts,  Nevis,  and 
Montserrat.  In  Africa,  Senegal  (sec  Peace  of  Paris,  1763)  was  ceded  back 
to  France,  and  Goree  restored.  In  the  East  Indies  there  was  a general 
restitution  of  conquests  made  from  Franco  in  the  war.  The  articles  of  the 
treaty  of  Utrecht  and  of  other  subsequent  treaties  relative  to  Dunkirk  were 
abrogated.  To  Spain,  Gieat  Britain  ceded  Minorca  and  Florida;  Spain 
restored  Providence  Lsland  and  the  Bahama,  and  reaffirmed  the  right  of 
the  English  to  cut  logwood  (sec  J’eace  of  Paris,  1 763),  settling  the  limits 
within  which  it  could  be  exercised.  The  Dutch  did  not  make  a final  peace 
with  England  until  May  20,  1784.  The  status  quo  ante  helium  was  its  basis, 
excepting  that  Holland  ceded  Negapatam  on  the  coast  of  Coromandel. 
(Martens,  iii.,  503  cl  seq.) 

1783,  December  28.  A convention  of  this  year  incorporates  the  Crimea 
and  the  town  of  Taman  into  the  Russian  Empire.  (Martens,  iii.,  707.) 
The  river  Kuban  is  to  bo  the  boundary  between  Russian  and  Turkish  ter- 
ritory. 


TnE.A.TIKS  OF  THE  AGE  OF  THE  FRENCH  RE'VOLUTION  AND  OF  N.4PO- 

LEON. 

1791,  .August  27.  Declaration  of  Pilnitz,  signed  by  the  sovereigns  of 
Austria  and  Prussia,  relative  to  interference  in  the  .affairs  of  France.  (§  47. 
IMariens.  v.,  260.) 

1 792.  January  9.  Peace  of  Jassy,  between  Russia  and  Turkey.  The 
left  bank  of  the.  Dniester  is  to  serve  as  the  boundary  between  the  Iwo 
sovereignties.  Thus  the  tract  between  the  river  and  the  Bug  with  Oczakow 


APPENDIX  II. 


453 


became  Russian.  (IMartens,  v.,  291.)  The.  Porte  engages  to  beep  the 
neighbors  of  the  Iliissiaus  along  the  Kuban  in  order. 

1 793.  Second  partiiion  of  Poland,  ^v]lieh  apjicars  in  the  shape  of  treaties 
between  Russia  and  the  King  and  Repiiblie  of  Poland  (Grodno,  July  1 3,  and 
October  IG,  the  latter  a treaty  of  allianci;),  and  of  a treaty  between  Prussia 
and  Poland  (Grodno,  Seiiteinber  25,  1 793).  Although,  in  tlie.  treaty  of 
cession  ami  limits,  Russia  renounces  forever  all  right  or  claim,  under  pre- 
text of  any  cMcnts  or  circumstances  whatever,  to  any  jirovince,  or  ilie  least 
part  of  the  territory  now  comitrised  in  Poland,  and  guarantees  to  maintain 
Poland  in  its  actual  state;  yet  the  third  parlitloii  took  place  in  1 795,  after 
the  insurrection  in  1 794  had  ended  in  the  taking  of  Warsaw  by  the  troops 
of  Sttwarrow.  To  this  Russia,  Austria,  and  Prussia  were  parties,  and  by  a 
convention  dated  Petersburg,  January  3,  and  October  24,  1795,  they  settled 
the  boundaries  between  their  respeelive  acquisitions,  which  included  the 
whole  of  Poland  yet  remaining.  Austria  now  held  all  Galicia  and  Lodoiniria, 
or  in  general  the  territory  between  the  Vistula  and  the  Bug;  Russia,  Cur- 
land,  Samogitia,  Little  Poland,  Lithuania,  Volhynia,  all  the  territory  east  of 
the  Bug  and  Niemen  ; Prussia,  that  west  of  the  Niemen  and  of  (he  Vistula, 
including  Dantzig,  Thorn,  and  Warsaw,  the  old  capital.  (Martens,  v. , 531 
el  seq.;  vi.,  1G8  el  seq.) 

1792  and  onward.  Coalition  against  France,  into  which  all  tln^  states  of 
Europe  successively  entered,  exccjit  Sweden,  Denmark,  Switzerland,  Tus- 
can}',  Venice,  and  Genoa.  A particular  grievance  on  the  part  of  the  Ger- 
man Empire  was  the  disregard  shown  by  the  Constituent  Assembly  for  the 
rights  of  princes  of  the  Empire  holding  lor(Lhi[)S  in  Alsace,  besides  which 
the  fear  and  dislike  of  French  revolulionary  princijjles,  especially  after  the 
death  of  Louis  XVI.,  January  21,  1 793,  acted  on  all.  In  the  course  of  the 
war  republican  France  conquers  the  Austrian  low  countries,  Holland  (which 
is  revolutionized  and  becomes  an  ally).  Savoy,  and  other  territory  on  the 
frontiers,  Lombardv,  IModena,  and  the  legations  of  the  Papal  state;  con- 
stitutes the  Cisalpine  Republic;  forces  a number  of  its  foes  to  a suspension 
of  arms  or  to  peace  and  alliance;  and  i-s  stripped,  together  with  its  con- 
federate, Holland,  of  foreign  possessions  by  the  naval  power  of  England, 
which  also  annihilates  the  fleets  of  Holland  and  of  Sjwin.  Spain  made 
peace  with  France  iu  1795,  and  became  an  ally  by  the  treaty  of  St.  Ilde- 
fonso,  August  19,  1 796.  The  most  noticeable  treaties,  by  which  this  grand 
coalition  was  weakened  or  broken,  were  those  of  France  with  Prussia  and 
with  Austria.  Those  with  Sardinia  and  with  the  Pope  also  deserve  men- 
tion. 

1795,  April  5.  Peace  of  Basel  between  France  and  Prussia.  Prussia 
promises  to  furnish  no  aid  to  the  enemies  of  the  French  Republic,  nor  to 
allow  them  a ])assage  through  her  terrilories.  Fi’cmdi  troops  may  coniinuc 
to  occupy  territory  on  (he  left  bank  of  the  Rhine  bedonging  to  (he  Piaissian 
king,  until  a general  pacification  shall  take  place  between  the  Empire  and 


454 


APPENDIX  II. 


France.  The  two  contracting  parlies  will  unite  their  efforts  to  remove  the 
theatre  of  war  from  the  noi’tli  of  (Ji'niiaii}-.  'I’lio  republic  will  aeeej)t  of  the 
good  ofliees  of  the  King  of  Prussia  in  favor  of  pi'inees  of  the.  Empire  who 
seek  his  intervention,  in  ths  desii'C  of  niaking  peace  with  France,  and  will 
regard  a,s  neutrals  those,  ])rim'es  and  estates  west  of  the  Uhine,  in  favor  of 
whom  the  king  sliall  intercede.  By  a treaty  of  May  17,  made  by  the  same 
powers,  at  the.  same  place,  a line  of  demarcation  was  draun  through  the 
middle  of  Germany,  and  the  Fiench  engaged  to  regard  as  nenti-als  those 
states  lying  to  the  north  of  this  line,  who  should  obseiae  a stiiet  neutrality, 
as  well  as  those  on  the  right  bank  of  the  Main  situated  widiin  the  line. 
Four  routes  were  left  open  for  French  and  Gertnau  troops  along  the  Rhine 
by  way  of  Frankfort,  ami  along  the,  right  bank  of  the  Main.  — This  treaty 
gave  up  the  left  bank  of  the  Rhine  to  France,  separated  the  North  from 
the  South  of  Germany,  and  placed  Prussia  in  a position  to  profit  by  any 
changes  which  might  be  effected  in  the  Empire  in  consequence  of  French 
compiests.  (Martens,  vi.,  45-02.) 

1795,  July  22.  Peace  between  France  and  Spain,  made  at  the  same 
place.  'Idle  French  restore  the  places  beyond  the  Pyienees  occujiied  by 
French  troops,  and  Spain  cedes  to  France  the  Spanish  ]iart  of  St.  Domingo. 
The  Freiudi  Republic  is  thus  acknowledged  by  the  Rom  bun  house  of  S[)ain. 
(Jlarten-;,  \ i , 121) 

1 795,  No\'ember  19.  Treaty  between  Great  Britain  and  the  United 
States.  See  124,  IGS. 

179G,  iMay  15.  Treaty  of  peace  signed  at  Paris  between  the  King  of 
Sai'dinia  and  the  French  Re|mblic  (Martens,  vi.,  21  I),  by  which  the  former 
renounces  the  coalition;  cedes  to  France  Savoy,  with  the  counties  of  Nice, 
Tende.  and  Penil  ; agrees  njion  the  boundary  iine  between  the  two  states; 
engages  to  e.-cclude  Ficnch  emigres  from  his  territories;  gi\es  the  rieht  of 
transit  to  French  troo]is  through  his  lands  to  and  IVom  Italy  ; and  suffers  a 
number  of  important  fortres.'Cs  to  be  occupied,  until  treaties  of  commerce 
and  of  general  jieace  shall  be  complete  1.  d'he  Batavian  Republic  is  com- 
prised in  this  and  other  treaties,  in  accordance  with  a.  jrrovisiou  in  the  treaty 
of  alliance  between  the  two  republics,  signed  at  the  Hague,  May  IG,  1795 
(Martens,  vi.,  88),  that  no  peace  can  be  made  by  France  with  any  of  the 
coalitionists,  in  which  the  Republic  of  the  Uniteil  Provinces  shall  not  be  in- 
cluded. 

1797,  February  19.  Treaty  of  Peace  between  France  and  the  Pope, 
s'gned  at  Tolenlino  (in  the  P.ipal  State,  and  in  the  delegation  of  iMaccrata). 
'i’hc  terms  had  been  ad  juste  1 in  part  in  the;  suspension  of  arms  made,  at 
Bo'ogna,  June  23,  1 79G.  (IMarteiis,  vi.,  239,  241.)  'J'he.  Po])e  agreed  to 
I'enounce.  the  coalition,  to  ceile  Avignon  and  the.  Yenaissin  (§  5G),  as  well 
as  the  legations  of  Bologna.  Fei'rara,  and  Romagna,  to  France,  to  allow 
Ancona  and  its  territory  to  be  occiqvied  by  French  tr.jojes  until  the  event  of 
a continental  peace,  to  pay  thirty-one  millions  of  livres  besides  five  already 


APPENDIX  II. 


455 


paid  since  tlie  armistice,  to  hand  over  a hundred  works  of  art  and  five  hun- 
dred luamiscripts,  etc. 

1 797,  April  17.  Preliminaries  of  a peace  between  the  French  Keptihlic 
anil  ilie  Einjreror,  agreed  lo  at  Leobeii,  a small  town  in  Styria.  'J’he  defin- 
itive peaee  followaHl,  made  and  signed  near  Campo  Formio,  in  Friuli,  Oe- 
tolier  1 7,  1797.  (Martens,  vi.,  385,  420.)  In  this  im[)ortant  treaty  (1  ) The 
Austrian  Netherlanels  are  ceded  lo  France.  (2.)  Yeniee  having  been  lately 
extinguished  by  Bonajrarte,  its  territory  is  divided  between  the  contracting 
parties  and  the  Cisalpine  l!e[)nblie,  I'Stablished  June  29,  1797.  The  French 
take  the  Venetian  islands  in  tlie  Levant — Coifii,  Zante,  Cejihaloni  i,  Santa 
klaura,  Ceiigo,  etc.,  and  in  general  all  the  Venetian  establishments  in  Al- 
bania situated  below  the  Gulf  of  Lodrino;  and  the  Austrians  lake  Islria, 
Dalmatia,  the  Venetian  islands  of  the  Adriatic,  the  mouths  of  the  Cattaro, 
the  eily  of  Venice  with  the  lagoons,  and  its  teridtory  on  the  Italian  main- 
land east  and  north  of  the  Adige  and  the  Lago  di  Garda.  (3.)  The  Em- 
peror acknowledges  the  Cisalpine  Ivepublic,  and  renounces  all  claims  which 
he  may  have  had  before  the  war  to  territory  incorporated  into  it.  This 
republic  includes  Austrian  Lombardy,  the  districts  of  Bergamo,  of  Brescia 
(both  Veneti  in),  and  of  Cremona,  Mantua  with  its  forire.«s  and  district, 
Peschiera,  the  jiart  of  the  Venetian  ])o?sessions  in  Italy  lying  to  the  east 
and  south  of  the  lands  newly  ceded  lo  Austria,  Modena,  Massa,  Carrara, 
the  legalions  of  Bologna,  Ferrara,  and  Romagna.  Bonaparte  had  already 
severed  Chiavenna,  the  Vallelline,  and  Bormio  from  the  Grisons,  and  in- 
vited them  lo  join  the  Ci  alpine  Repnhlic.  (4.)  The  Emperor  binds  himself 
to  cede  to  the  Duke  of  Modena  the  Breisgau,  as  an  indemnity  foi-  his  former 
possessions  in  Italy.  (5.)  There  shall  be  a congress  held  at  Rastadt,  to  he 
composed  of  plenipotentiaries  of  Fiance  and  the  Empire,  in  order  to  make 
peace  between  these  powers.  (G.)  In  secret  articles  agreed  upon  at  the 
same  time,  the  Emperor  consents  that  the  left  bank  of  the  Rhine  from 
Switzerland  to  the  Nctte  above  Andernach,  comprising  the  tele  de  pant  of 
Itlannheim,  and  the  towm  and  fortress  of  Mainz,  shall  belong  to  France, 
and  engages  to  try  to  induce  the  Em])ire,  in  the  congress  to  be  assembled,  to 
agree  to  this  lino  of  honndary.  The  Emperor  also  ]iromises,  when  a jieaeo 
wiih  llu'Emjnre  shall  be  made,  to  cede  to  France  the  Frickthal  (in  the  can- 
ton of  Argaii,  Switzei'land),  and  other  conlignons  po-sessions  of  Austria, 
in  order  to  he  united  to  the  Ilelveli  in  Re|)ublie.  lie  also  cedes  to  Franco 
the  county  of  Falkenslein.  Fi'anee,  on  the  other  hand,  will  endeavor  to 
procure  for  the  Fmporor  the  bi^hI)]lric  of  Salzburg,  and  the  part  of  Bavaria 
lying  between  that  bishopric,  the  Inn,  the  Salza,  and  T3rol.  In  ease  the 
territory  of  Prinsii  beyond  the  Rhine  shall  be  restored  to  her,  which  the 
Fremdi  are  willing  to  do,  she  shall  have  no  claim  to  new  acquisitions.  In- 
demnifications are  to  be  made  to  estates  of  the  Empire,  who  shall  ha,\  o lost 
territory  by  this  jieace,  or  by  the  contemplated  peace  with  the  Empire. 

The  Congress  of  Rastadt  was  opened  December  9,  1797,  and  closed  with 


456 


APPENDIX  n. 


no  definite  result  in  April,  1799.  For  the  atrocious  murder  of  two  of  the 
Frcneh  iiegotiatoi  s on  their  way  home,  comp.  § 9G,  n.  Between  these  dates 
Switzerland,  Koine,  and  Naples  had  been  transformed  respectively  into  the 
Ilelvelie,  Homan,  and  Parihenopajan  republics,  the  two  last  of  which  were 
almost  as  short-lived  as  Jonah’s  gourd;  the  King  of  Sardinia,  worried  out 
by  Frcneh  aggressions,  had  renounced  his  authority  in  Piedmont,  in  favor 
of  a provisory  government,  and  gone  over  to  the  island  of  Sardinia  ; an 
expedition  under  Bonaparte  had  been  sent  to  Egypt;  and  Austria  had  de- 
cided to  join  a second  coalition  to  which  Russia,  England,  Naples,  and 
Turkey  were  parlies.  The  French  were  almost  driven  out  of  U])per  Italv 
by  Suwarrow;  Rome  and  Naples  were  rescued  from  their  sway;  but  the 
withdrawal  of  the  Emperor  of  Russia  from  the  alliance,  and  the  great  vic- 
tories of  Bonaparte,  now  First  Consul,  at  Mai-engo  (June  14,  1800),  and  of 
]\Ioreau  at  Iluhenlindcn  (December  2,  1800),  disposed  Austria  to  jieace. 

1800,  Uccember  IG.  Conventions  of  Russia  with  Sweden  and  Denmark, 
and  on  the  18th  of  Decembei-,  with  Prussia,  constituting  the.  second  armed 
neutrality.  The  affair  of  the  Freya  (§  209),  following  Sir  William  Scott’s 
decision  in  the  e.ase  of  the  Maria  (Robinson’s  Rep.,  i.,  340-379),  which 
denied  the  light  of  convoy  and  condemned  the  vessel,  led  to  this  new  at- 
tempt to  establish  by  force  the  principles  of  international  law.  A conven- 
tion was  made,  August  29,  1800,  between  Great  Britain  and  Denmark, 
reserving  the  ipiestion  of  convoy,  and  restoring  the  frigate  with  the  vessels 
under  her  jiroteclion.  Then  grievances  of  his  own  induced  the  Emperor 
Paul  lo  lay  an  embargo  on  British  \ essels.  After  the  armed  neutrality,  the 
British  Government  hiid  .a  counter-emliargo  on  the  shi[)s  of  the  three  north- 
ern powers.  (January  14,  1801.)  The  affair  at  Copenhagen  ne.xt  iook 
place,  and  was  followed  by  an  armistice  with  Denmark.  'J  ben,  in  June, 
the  conventions  spoken  of  in  § 209  took  jilace,  which,  in  the  form  of  a con- 
cession, yielded  no  important  claims  of  Great  Britain.  Comp.  AVheaton, 
“ Hist.,”  part  iv.,  §§  7-9.  (Martens,  “ Rec.,”  vii.,  172  et  seq.,  2G0-281.) 

1801,  February  9.  Treaty  of  Luneville  between  France  and  the  German 
Emperor,  acting  also,  without  previous  authority  of  the  Diet,  for  the  Em- 
pire, which  ratifunl  the  peace  soon  afterward.  (Martens,  vii.,  29G.)  In  this 
treaty  several  of  the  imiiortant  stipulations  of  the  Treaty  of  Campo  Formio 
are  repeated.  The  Emperor  cedes  the  Austrian  Netherlands,  the  Fricklhal, 
and  the  county  of  Falkenstein  ; the  division  of  Northern  Italy  is  the  same, 
except  that  the  Adige  from  the  point  where  it  leaves  Tyrol  to  the  sea,  is  to 
be  the  wi'stern  limit  of  Austrian  territory  ; the  Duke  of  IModena  is  to  have 
the  Breisgan  as  before;  indemnifications  are  again  mentioned  as  to  bo  made 
by  the  Einjiirc  for  ])rinees  whose  territories  had  been  ceded  to  Franco. 
The  left  bank  of  the  Rhine,  ” from  the  place  where  it  leaves  the  Helvetic 
territory  to  where  it  enters  the  Batavian,”  is  to  bo  Freiudi.  The  Grand 
Duke  of  Tuscany,  the  Emperor’s  brother,  it  is  agreed,  shall  renounce  his 
duchy  and  the  parts  of  Elba  depeudent  upon  it,  in  favor  of  the  Duke  of 


APPENDIX  II. 


457 


P.irma.  and  phall  be  paid  off  b}-  an  indemnity  in  Germany.  The  treaty  is 
deeiared  to  embrace  the  Batavian,  Cisalpine,  Helvetic,  and  Ligurian  repub- 
lics, the  indcpenilcnce  of  which  is  guaranteed  by  the  conlraciing  jiartics. 
Fiefs  of  the  E iipire  had  already  been  given  by  the  Ti'caty  of  Campo  Formio 
to  the  Ligurian  Rej)ul,lic.  These  (iefs  are  now  renounced  by  the  Linjieror 
for  himself  and^he  Empire. 

The  arrangements  respecling-  the  Duke  of  Parma  had  already  been  a sub- 
ject of  migotiation  between  France  and  the  King  of  Spain,  whose  son-in- 
law  the  duke  was.  It  tvas  agreed  by  the  Treaty  of  St.  Ildefonso,  of  October 
1,  ISOO,  that  Parma  and  Louisiana  should  be  ceded  to  France,  and  by  the 
Treaty  of  Madrid  (March  21,  1801,  Martens,  vih,  33G)  it  was  agreed,  as  in 
the  Pe.aee  of  Luneville,  that  the  dukes  of  Parma  and  Tuscany  should  resign 
their  duchies,  tliat  the  former  should  take  possession  of  Tuscany  willi  the 
title  of  king  (afterward  called  King  of  Etruria),  and  that  lie  should  cede  to 
France  the  part  of  the  island  of  Elba  belonging  to  Tuscany,  and  be  com- 
pensated for  this  bj'  Piombino,  then  pcrtainitig  to  the  King  of  Naples. 

1802,  Jlai’ch  27.  Definitive  Treaty  of  Peace  of  Atniens,  between  Great 
Britain  on  the  one  part,  and  the  French  and  Batavian  republics  and  Spain 
oti  the  other.  The  preliminaries  had  been  signed  at  London,  October  1, 
1801.  Englatid  renounces  her  conquests  won  from  the  three  power.s,  except 
Trinidad  and  Ceylon,  which  are  ceded  to  her  by  Spain  and  the  Batavian 
Republic  res[)ectively ; Malta  is  restored  to  the  Order  of  St.  John  of  Jeru- 
salem ; the  territories  of  Portugal  and  Turkey  are  maintained  in  their  en- 
tirencss  as  they  were  before  the  war;  the  boutidaries  of  French  and  Portu- 
guese Guiana  are  rectified;  the  Republic  of  the  Seven  Ionian  Islands  (taken 
from  France  by  the  fleets  of  Russia  and  Turkey,  in  1798  and  the  next  year) 
is  recogtiized ; a fair  compensation  is  promised  by  France  to  the  hoitse  of 
Orange  for  its  losses  in  the  Netherlands;  and  the  troops  of  France  are  to 
be  withdrawn  from  Rome  and  Naples.  — The  Peace  of  Atniens  was  a mere 
truce.  IVar  was  again  declared  between  England  and  France  in  a little 
less  than  a year.  (IMartens,  vii.,  377,  404.) 

1803,  February  25.  Rcces  or  report  of  an  extraordinary  committee  of 
the  Eui])ire  (Ri  ichsdoputalionshatiptsi  hluss),  ratified  by  the  Diet,  IMarch 
24,  atid  by  the  Emperor,  April  27.  (ilartens.  vii.,  435  et  setj.')  Several 
trcatii'S,  that  of  Luneville  last  of  all,  hail  contetnplated  the  giving  of  in- 
detnuilica  ions  to  dispossessed  German  piinces,  an  1 several  foreign  princes 
wei'e  to  hi‘  provided  for  in  Gcrtnany  who  had  lost  their  own  lands.  At  the 
Congie-scf  Rastadt  this  was  a leading  subject  of  negotiation,  and  it  was 
agreed  to  make  the  indemnities  by  tneaus  of  secularized  ecclesiastical  ter- 
ritory, blit  the  congress  broke  up  without  anything  being  acconiiilisbed. 
To  Iiring  this  matter  to  a conclusion,  the  Diet  a|apoitiied  (October  2,  1801) 
a (leputition  or  committee  of  eight  inetnbers,  four  of  them  electors  and  four 
not,  before  whom  came  the  first  ])lan  of  indetntiity,  offered  by  Fraticc  and 
Russia  as  mediating  powers,  and  who,  after  several  sets  of  changes  in  the 


458 


APPENDIX  II. 


project,  presented  the  report  which  the  Diet  adopted.  It  was  in  truth  little 
else  than  a loniiality,  I'oi'  the  whole  seheine  dej)ended  on  the  will  ot  Xapo- 
h'oii,  wiih  whom  Kussia  now  aeleil  ; and  wliile  the  eomniiitee  was  sitline', 
the  leadiiig  ]iowere,  or  Iho.-e  who  were  in  his  |j;ooil  graces,  got  by  sjieeial 
treaties  beili'r  terms  of  indemnity  in  many  ease.s  than  ihey  had  a.  right  to 
demand.  'J'his  traiisaidion  was  in  effect  a change  in  ihe  Constitution  of 
Cermany,  but  it  loses  its  inlerest  and  importance  from  the  fact  that  ihe  old 
Empire  tumbled  to  the  ground  a little  afterward.  By  this  measure,  (1  ) All 
immediate  church  teri'itory  was  secularized  c.KCcpt  a little  jiart  of  that  of 
Mayence,  and,  (bis  not  snilicing,  all  but  si.K  of  the  (irty-one  imperial  towns, 
and  the  villages  of  the  same  class  lost  their  immediacy  and  were  put  into 
the  hands  of  jirinees  who  iecci\ed  compensation.  'J'he  archbisbojis  of 
Cologne  and  'I'liers  thus  lost  with  their  tei'i itoi'ies  their  electoral  dignities. 
The  see  of  jMa^eiiee  was  transferred  to  Ratisbon,  the  archbishop  of  which 
W'as  always  to  be  arehchancellor,  primate  of  Germany,  and  one  of  the 
electors,  and  to  be  the  metropolitan  over  the  former  provinces  of  Mayence, 
Cologne,  Triers,  and  Salzburg,  d'he  six  towns  remaining  as  estates  of  the 
Einpire  were  Augsburg,  Nuremberg,  Frankfort,  Ilamlinrg,  Lfibcck,  and 
Bi'cmcn.  (2.)  Of  th.e  great  number  of  princes  for  wdiom  indemnification 
was  ihns  found,  we  can  name  only  a few.  To  (he  Duke  of  Tuscany  (see 
Treaty  of  Lnneville)  was  assigned  the  archbishopric  of  Salzburg,  Eerchtes- 
gaden  er.closed  in  Salzburg,  a territory  under  a prince-provost,  part  of  the 
bi.'-ho|)rie  of  Passan,  and  most  of  that  of  Eichstadt.  To  the  Duke  of  IModena 
(see  'I'l  eaty  of  Campo  Formin)  the  Breisgau  and  the  Ortenan.  To  (he  Pi  ince 
of  Nassau-Dillenbnrg,  former  Stadtliolder  of  Holland  (see  Tieaty  of  Amiens), 
through  (he  intervention  of  Piaissia,  the  bisho[)ric  of  Corvey,  Dortmund, 
and  various  abbeys.  To  Austria,  in  lieu  of  the  Ortenan  conveyed  to  (he 
Duke  of  IModena,  the  bisliojjrics  of  Trent  and  Brixen.  'J’o  the  King  of  Prus- 
sia, in  lieu  of  Guelders  and  Cloves,  lying  west  of  the  Rhine,  the  bishoprics 
of  Ilildeshcim,  Paderborn,  and  in  part  Miinster,  with  several  to'wns  and 
abbeys.  To  the  King  of  England,  as  Elector  of  Hanover,  for  his  claims  on 
territory  aw'arde<l  to  Nassau  and  Prussia,  the  bi>hnpric  of  Osnabnrg.  To 
the  Elector  Palatine  of  Bavaria,  in  lien  of  Denx-Ponts,  Jnliers,  etc.,  the 
bishopi'ii  s of  Bamberg.  Frei-'^ingen,  Augsburg,  and  in  paid  Passan,  the  prop- 
erties of  ec(desiasticai  foundations  in  the  city  of  Augsburg,  various  abbeys, 
and  as  many  as  seventeen  towns  or  villages  of  the  Empire.  To  the  Duke 
of  \'i’iir;cnd)erg.  the  ])i'ovostship  of  Ellwangen,  nine,  i njicrial  towns,  and 
seven  ablicys.  To  the  Margrave  of  Baden,  llie  bishopriit  of  Constance, 
binds  t’ast  of  thii  Rliiiie  pertaining  to  the  bishoprics  of  Basil,  Strasbnrg, 
and  .‘Spires,  a.  part  of  the  p datimite  of  the  Bhine,  wdtb  Hcididbcrg  and 
jMamibcim,  ten  abbeys,  seven  towns,  etc.,  by  which  bis  territory  wars  nearly 
doubled.  To  llesse-Dai’instadt  the  duchy  of  IVestphalii.  with  some  dis- 
tricts of  Mi'.ycnce  and  of  tin;  Palatinate,  d'o  Ilesse-Cassid,  a sii'.idl  jiart  of 
the  territory  of  Mayence.  To  the  Duke  of  Holstein-Oldenburg  the  bishopric 


APPENDIX  II. 


459 


of  Liiheck  (.1  Protestnnt  territory),  and  fonic  lands  in  ITnnovcr  and  l\Iiin.ster. 
(3.)  A mindier  of  iHMV  votes  in  llie  eoUeiie  of  princes  were  ci  eaU'd.  '1  lie 
electoral  dieiiity  was  wiven  to  llie  Duke  of  'J'nseany.  to  Baden,  W’iirlendjere', 
and  Ilesse-Ciissel  (with  reversion  to  nesse-l.)arnistadl).  wliiie  the  electoral 
office  of  the  archbishops  of  Cologne  and  Triers  fell  with  the  sccidarizatiun 
of  their  territories. 

1S03,  April  30.  Treaty  signed  at  Paris  between  the  French  Republic  and 
the  United  States  of  America,  touching  the  cession  of  Louisiana.  By  a 
secret  treaty  of  ISoveinber  3,  17G2,  signed  at  Fontainebleau  and  (irst  pub- 
lished in  183G,  France  ceded  to  Spain  Louisiana  and  New  Orleans.  By 
the  Ireaty  of  St.  lldefonso  (October  1,  1800),  Louisiana  was  retroceded  by 
Siiain  to  France  (see  Treaty  of  Madrid  under  Peace  of  Lnncville,  1801), 
as  part  of  an  cipiivalent  for  ibe  establishment  of  the  Duke  of  Parma  in 
Tusc-any.  Napoleon  now,  in  the  ap])rehension,  it  would  seem,  that  Lngiand 
might  take  possession  of  this  territory,  conveys  it  to  ihe  United  Stales,  ‘as 
fully  and  in  the  same  manner  a.s  it  had  been  acipiired  by  the  Fi'ench  R.r|nib- 
lic.'’  The  thii’d  article  of  the  Treaty  of  St.  lldefonso  had  conveyed  it  to 
France,  “ with  the  same  c.xtent  that  it  now  has  in  the  hands  of  Spain,  and 
that  it  had  when  France  possessed  it,  and  such  as  it  should  be,  after  the 
treaties  subsetiuently  entered  into  bctw'cen  Spain  and  other  states”  — which 
treaties  would  relate  to  the  recognition  of  the  Duke  of  Parma  as  King  of 
Etruria.  'J'hus  the  limits  of  the  ten  itory  conveyed  to  the  United  States 
are  not  defined  by  a single  W'ord.  The  inhabitants  were  to  be  admitted,  as 
soon  ns  possible,  to  the  enjoyment  of  all  the  rights,  tidvantages,  and  im- 
munities of  citizens  of  the  United  States,  and  in  the  mean  time  to  be  ]iro- 
tccted  in  the  enjoyment  of  their  liberty,  [iroperty,  and  religion.  'I'he  treaties 
made  bv  Spain  with  the  Indians  were  to  be  e.xecuted  by  the  United  Stales. 
Ships  of  France  and  of  Spain  coming  from  those  respective  countries  or 
their  colonies,  and  laden  with  their  ]iroducts  or  those  of  their  colonies  re- 
spectively, and  the  vessels  of  no  other  nations,  shall  be  admitted  for  twelve 
years  into  the  ports  of  entry  of  the  ceded  territory.  By  two  conventions  of 
the  same  date  it  is  agreed  that  the  United  Stales  shall  pay  France,  by  the 
first,  a sum  of  sixty  millions  of  francs  (Si  1,250,000,  at  the  rate  of  5^-  francs 
to  the  dollar),  and  by  tbe  otber  a sum  which  cannot  exceed  20  000  000 
francs,  and  which  is  intended  to  cover  the  debts  due  ‘‘  to  citizens  of  the 
United  States  who  are  yet  creditors  of  France  for  supplies,  for  embargoes, 
and  for  prizes  made  at  sea,  in  which  the  appeal  has  l;een  properly  lodged, 
within  the  lime  mentioneil  ” in  the  convention  of  September  30,  1800,  etc. 
The  treaty  is  signed  in  English  and  French,  but  ihi;  original  is  declared  to 
be  in  Frencb.  Itwas  ratified  at  AVashington,  October  21,  1803.  Do  Gaiilen 
(viii.,  50)  informs  us  that  S|)ain,  in  the  treaty  of  cession  to  France,  reserved 
the  preference  or  refusal  to  herself,  in  case  France  should  allow  the  terri- 
tory to  ])ass  out  of  her  hands.  All  claim  from  this  source  was  cut  off  by 
the  consent  of  Spain  to  the  alienation,  which  was  given  early  in  1804. 


460 


APPENDIX  n. 


(^larten?,  vii..  cntl.)  Tlic  treaties  of  17G2  and  of  St.  Tldefonso  are  given 
by  l)e  Garden,  n.  s.  The  latter  at  least  is  not  in  l)e  Martens. 

1805,  December  20.  Peace  of  Presbnrg,  between  Austria  and  France. 
(IMarteiis,  viii. , 388.)  In  1802  (Seiitembcr  21)  Piedmont  was  united  to 
Fi'anc(!  — all  that  ])art  of  it  at  least  wbicb  bad  not  been  incorporated  in  ibe 
Cisalpine  l!e|mblie.  In  1803  war  was  again  declared  by  England  agtiinst 
France,  and  in  revenge,  the  electorate  of  Hanover,  altbougb  a German  state, 
was  occupied  by  Fiencb  troops.  In  1804  (iMareb  21)  tbe  Duke  d’Engbien 
was  seized  on  German  territory — -in  Baden  — and  murdered  after  a pro- 
tended  sentence.  Tlie  ilelay  of  Napoleon  to  provide  compensation  for  tbe 
King  of  Sardinia,  togefber  with  tbe  criminal  violations  of  German  territory 
above  mentioned,  facilitated  a new  coalition  between  England,  Sweden, 
anil  Russia,  to  wbicb  .Austria  gave  ber  adliesion  in  1805.  Meanwbile  Na- 
poleon bad  become  Emperor  of  tbe  Frencb  in  1801,  .and  in  IMareb,  1805, 
King-  of  Italy  — wbicb  title  of  Kingdom  of  Italy  tbe  Cis.alpinc  Republic  bad 
now  taken.  Lucca  bail  been  made  a bereditary  principality ; tbe  Ligurian 
Rej)ublie  bad  been  united  toFi'ance;  Parma,  I’iacenza,  and  Guastalla  bad 
lieen  declared  Freiudi  territory  by  a simpli;  decree  of  tbe  Emperor;  and  two 
of  bis  creatures,  tbe  dukes  of  AVurtemberg  and  of  Bavaria,  bad  of  ibeir  own 
movement  taken  the  title  of  king.  The  war  wilb  England,  which  did  not 
end  until  tbe  Peace  of  Europe  in  1814,  put  a stop  to  tbe  disastrous  attempts 
of  Bonaparte  to  recover  St.  Domingo,  annihilated  the  fleets  of  France  and 
Spain  at  the  battle  of  Trafalgar,  and  gave  the  possession  of  a number  of 
French  colonies  to  the  English.  The  war  with  Austria  was  decided,  in  a 
short  campaign,  by  tbe  capitulation  of  Him  and  the  battle  of  Austerlitz.  In 
tbe  Peace  of  Presburg,  wbicb  soon  followed,  (1.)  Austria  recognized  tbe 
arrangements  made  by  France  in  It.aly,  including  the  union  of  territory  to 
France  — as  in  the  ease  of  J’iedmont,  Genoa  (the  Ligurian  Republic),  Parma, 
and  Piacenza  — and  the  new  government  organized  in  Lucca  and  Piombino. 
(2.)  .Austria  renounced  the  part  of  tbe  Republic  of  Venice  ceded  to  her  by 
the  treaties  of  Campo  Formio  and  Lnneville,  which  was  to  he  united  to  the 
kingdom  of  Italy.  The  Frencb  Emperor  was  also  recognized  as  King  of 
Italy;  but  as  tbe  crowns  of  France  and  It.aly  were  eventually  to  be  sep- 
arated, tbe  Emperor  of  Germany  engaged  to  recognize  tbe  successor  whom 
Napoleon  should  name  King  of  Italy.  (3.)  'I'be  electors  of  Bavaria  and 
AViirtembcrg  having  taken  the  title  of  king  without  leaving  tbe  German  con- 
federation, they  are  lecognized  by  Austria  in  that  quality.  (4.)  Austria 
cedes  and  gives  up  to  the  King  of  Bavaria  the  iMargravate  of  Burgau,  the 
principality  of  Eichstadt,  part  of  Passau,  Tyrol,  including  Bri.\en  and 
Trent,  A^orarlberg,  and  other  territory.  To  the  King  of  AViirtemberg  are 
ceded  the  five  towns  of  tbe  Danube  so  called,  tbe  upper  and  lower  county 
of  Hobenberg,  and  other  teridtory.  To  the  Elector  of  Baden,  tbe  Breisgau 
and  the  Ortenau,  the  city  of  Constance,  anil  tbe  comniandery  of  IMeinau. 
These  three  powers  shall  enjoy,  it  is  agreed,  the  same  full  sovereignty  wliich 


APPENDIX  II. 


461 


the  Emperor  and  the  King  of  Prussia  have  in  their  estates.  (5.)  Salzburg 
and  Berehtesgaden,  which  had  been  given  by  the  Peace  of  Liine\ ille  and 
the  I'eport  of  the  deputation  of  the  Empire,  to  the  Ditke  of  Tuscany,  aie 
now  taken  from  the  Arebduke  Fcnlinand  and  incorpoiaitcd  in  tbe  Atistrian 
Empire.  As  an  equivalent,  he  is  to  have  the  principality  of  Wiirzburg, 
which  the  French  Emperor  engages  to  obtain  for  him  from  the  King  of 
Bavaria,  attd  the  electoral  dignity  attached  to  Salzljurg  is  to  be  transferred 
to  this  new  territory.  (6.)  'I'he  contracting  powers  di>pose  of  two  (ierman 
estates  in  a very  summary  way.  The  city  of  Augsburg  is  put  into  the 
hands  of  the  Bavarian  king  ; and  the  office  of  Grand  Master  of  the  Teutonic 
Order,  with  its  rights  and  domains,  is  transferred  to  some  prince  of  the 
house  of  Austria,  whom  the  Emperor  shall  designate,  and  in  whose  male 
line  it  shall  descend. 

This  humiliating  Peace  of  Presbiirg,  by  which  Austria  lost  2.3,000  sqttare 
miles  of  territory  and  almost  3,000,000  of  inhabitants,  was  a piclude  to  the 
complete  overthrow  of  the  German  Empire.  In  1806,  Jubj  12,  was  signed  at. 
Paris  the  Confederation  of  the  lihine  (liheiubund),  consisting  originally  of 
the  kings  of  Bavaria  and  Wiirtemberg,  the  grand  dukes  of  Baden  and 
Hessc-Darmstadt,  the  Prince  Primate  of  Germany  (see  llcpjrt  of  Deputation 
of  Empire),  the  Duke  of  Berg,  the  princes  of  Nassau-Usingen  and  Nas- 
sau-Weilburg,  and  many  smaller  princes.  (Martens,  viii.,  480  ct  seq.)  To 
these,  in  time,  were  added  the  Elector  of  Wurzburg  — the  Emperor’s 
brother — (see  Peace  of  Preshurg),  the  Elector  of  Saxony  (who  had  leave 
from  Napoleon  in  December,  180G,  to  call  himself  king),  the  dukes  of  Olden- 
burg and  Jlecklenburg;  so  that  (llermany  was  now  split  up  into  three  parts: 
Austrian,  Prussian,  and  French  Germany.  The  Confederation  of  the  Bhine 
was  mailc  known  to  the  Diet  August  1,  180G,  and  the  members  renounced 
their  connection  with  the  German  Empire  — as  the  league  had  provided; 
soon  after  which  (.\ugust  G),  the  Emperor  published  an  act  declaring  the  Em- 
pire extinct,  laying  aside  the  crown  and  absolving  all  from  their  allegiance. 
He  was  henceforth  Emperor  of  Austria  only,  a title  which  he  had  assumed 
two  years  before.  The  Rhenish  League  Avas  to  have  its  own  diet  at  Frank- 
fort; to  form  an  alliance  for  all  continental  Avars,  offensive  and  defensive, 
Avith  France  ; to  rtetermine  the  contingents  of  the  members,  etc.  Many 
estates  of  the  old  Empire  Avithin  the  territoiy  of  the  confederation  were 
mediatized,  or  brought  under  the  soA'ereignty  of  some  one  of  its  members; 
thus  Fi-ankfort  and  Nuremberg  lost  their  independence,  and  the  race  of 
knights  holding  immediately  of  the  Empire  (Reichsritter)  Avas  e.xtinguished. 

1807,  July  7.  Peace  of  Tilsit,  made  by  Russia,  and  July  9,  by  Prussia, 
Avith  Napoleon.  (Alartens,  viii.,  G37,  GGl.)  After  the  Peace  of  Prcsbnrg, 
Napoleon  proceeded  still  more  boldly  in  his  aggressions  and  plans  of  ag- 
grandizement. The  Bourbons  Avere  declared  to  reign  no  longer  in  Naples, 
and  his  brother  Joseph  Avas  made  king  there;  Holland  Avas  converted  into 
a kingdom  for  another  brother,  Louis;  his  sisters  received  principalities  in 


462 


APPENDIX  II. 


Italy;  Murat  was  made  Grand  Duke  of  Berg;  and  a plan  of  creating  an  im- 
perial nubidty  out  of  liis  generals  and  eourliei’.s,  with  estate's  provided  from 
the  conquered  lerrilory,  was  vigorously  pui'siicd.  Toward  Prussia  and  its 
vacillating  king  he  pursued  a course  of  mingled  insidt  and  craft.  lie  look 
Anspach  into  his  own  hands  before  a treaty  permitted  it;  he  persuaded 
the  king  to  give  uj)  Cleve  and  AVescl,  which  were  given  to  Murat,  on  whom 
also  Ijcrg,  ceded  by  Bavaria,  was  bestowed;  he  rctpiircd  him  to  occupy 
Hanover,  thus  leading  the  way  to  a collision  between  Prussia  and  England. 
1 lie  counsels  of  the  jiatriotic  jiarly  so  far  prevailed  in  Prussia,  ih.at  war  was 
inevitable;  but  the  aristocracy  was  debased,  the  king  was  weak,  the  svstem 
of  war  was  antiquated,  and  the  result  was  the  utter  prostration  of  the 
country.  J he  campaign  of  180G,  by  the  battles  of  Jena  and  Auerstadt, 
and  by  vai'ious  ca|)ilulalions,  made  Napoleon  master  of  most  of  German 
IruSsia;  he  entered  Berlin,  and  there  issued  bis  decree  called  by  the  name 
of  the  ciiy,  in  pursuance  of  his  continental  svsti'in.  ( § 20G.)  In  the  autumn 
of  ISOG  his  troops  penelratcd  into  Prussian  Poland,  whei'e  French  agents 
had  stirred  up  an  insurrecliou,  and  in  1807  the  Ivussiaus,  Prussia’s  only 
hojie,  were  dctcalcd  at  Lriedland.  The  whole  kingdom  was  now  overi’un 
and  compiered,  and  the  king  sued  lor  peace.  'J  he  conferences  were  at- 
tended in  person  by  Napoleon,  by  tbc  Czar,  and,  after  tlie  first  interview, 
by  the  King  of  Prussia;  and  the  result  was  that  Alexander,  fascinated  by 
the  genius  of  Napoleon,  and  guided  by  him  in  his  views  of  his  interests, 
liraelically  abandoned  his  ally,  who  was  thus  forced  to  accept  of  the  most 
humiliating  terms  ])ossible.  By  the  Peace  of  J'ilsit,  I’russia  renounced  all 
its  lerrilory  on  the  west  of  the  Elbe,  inchidiug  Hanover  — which  jmovinces, 
with  others  in  Napoleon’s  hands,  were  to  constitute  a kingdom  of  A^’est- 
phalia  under  Jerome  Bonaparte  — and  renounced  also  the  lands  acquired 
by  the  second  and  third  jvartitions  of  Poland,  with  the  southern  jiart  of 
AVest  Prussia.  Tliese  Polish  ])ossessions  constituted  into  a duchy  of  AV'ar- 
saw  — except  the  district  around  Bialystock,  which  passed  over  to  Russia — 
together  with  the  circle  of  Kotbus  in  Lower  Eusatia,  were  ceded  to  the 
King  of  Saxony,  who  was  to  be  made  Grand  Duke  of  Warsawq  and  wdio  wuas 
to  have  the  u-e  of  a military  road  across  Prussia  betw'cen  Saxony  and 
Poland.  Dantzig,  it  w'as  agreed,  with  two  leagues  of  territory  arouni!  it, 
shou’d  be  an  independent  district  under  the  protection  of  Prussia  and 
Saxony,  with  its  ports  closed  to  English  commerce  during  the  present  mari- 
time war  with  England.  The  rest  of  its  former  territory  wms  restored  to 
Prussia,  wdiii  h thus  retaineil  about  half  of  its  population  of  10.500,000.  It 
W'as  obliged  to  recognize  also  Napoleon’s  new  crtuitions,  the  Rhenish  Con- 
fi'ileration,  the  kings  of  AA^estphalia,  Naples,  and  Holland.  By  conventions 
made  in  1808  (Martens,  “Nouv.  Rec.,”  i.,  102,  onward),  Prussia  was  forced 
to  pay  one  hundred  and  forty  millions  of  francs  “ for  extraordinary  con- 
ti'ibutions  and  arrears  of  revenue  ” — which  afterward  were  drojtped  to  one 
hundred  aud  twenty  millions  — and  to  leave  the  forts  of  Glogau,  Stettin, 


APPENDIX  II. 


463 


and  Ciistrin  in  the  hands  of  the  French  until  payment,  under  engagement 
to  provision  tlic  troops  and  to  allow  military  roads  between  the  places  thus 
occn[)ie(l,  np  to  their  evacuation. 

The  treaty  with  Russia  contains  little  worthy  of  mention  and  not  already 
contained  in  the  treaty  with  Prussia,  unless  that  Napoleon  agreed  that  the 
dukes  of  Saxe-Coburg,  Oldenburg,  and  Mecklenburg  Schwerin  should  be 
restored  to  their  estates,  with  the  pi’ovision  that,  as  long  as  the  war  with 
England  should  last,  the  ports  of  the  two  latter  districts  should  be  occupied 
by  French  garrisons.  Also  the  small  lordship  of  Jever  in  East  Friesland, 
which  came  down  to  the  Czar  from  his  grandmother,  Catharine  II.,  was 
ceded  to  the  King  of  AVestphalia. 

Secret  articles  annexed  to  these  treaties  contain  the  stipulations  that  the 
Seven  Islands  (Ionian)  shall  belong  to  Napoleon;  that  if  Hanover  shall 
form  a part  of  the  kingdom  of  Westphalia,  a territory  on  the  west  bank  of 
the  Elbe,  containing  from  three  to  four  hundred  thousand  inhabitants,  shall 
be  restored  to  Prussia;  and  that  Prussia  should  make  common  cause  with 
France,  in  case  England,  by  December  1,  1807,  should  not  have  consented 
to  a peace  conformable  to  the  true  principles  of  maritime  law.  (De  Garden, 
X.,  234,  not  in  Martens.) 

A treaty  of  alliance  between  France  and  Russia,  made  on  the  same  day 
with  the  treaty  of  peace,  contains  some  noteworthy  provisions;  (1.)  Russia 
was  to  make  common  cause  with  France,  if,  by  November  1,  1807,  England 
should  not  have  made  peace  on  the  basis  of  an  equal  and  perfect  independ- 
ence of  all  flags  upon  the  sea,  and  upon  that  of  restoring  to  France  and  her 
allies  conquests  made  since  1805.  (2.)  If  England,  by  the  first  of  Decem- 

ber, should  not  have  given  a satisfactory  answer  upon  these  points,  France 
and  Russia  should  summon  the  courts  of  Copenhagen,  Stockholm,  and 
Lisbon,  to  (dose  their  ports  to  the  English,  and  to  declare  war  against  that 
nation.  But  if  England  should  come  to  the  terms  of  the  allies,  Hanover 
should  be  restored  in  lieu  of  colonies  conquered  from  France,  Holland,  and 
Spain.  It  was  the  knowledge  of  this  article  whicdi  led  England  in  Septem- 
ber of  the  same  year  to  bombard  Cojienhagen  and  take  the  Danish  fleet. 
(3.)  In  a certain  event,  the  two  parties  should  agree  to  remove  all  the 
))rovinces  of  the  Ottoman  Empire  in  Europe,  except  Roumelia  and  the  city 
of  Constantinople,  from  under  the  Turkish  yoke.  (De  Garden,  x.,  234-237, 
not  in  Martens.) 

Secret  and  somewhat  chimerical  articles  between  the  two  Emperors,  in 
addition  to  these,  are  spoken  of,  which  rest  on  doubtful  evidence.  Russia 
was  to  take  possession  of  Turkey  in  Europe,  and  to  aid  Franco  by  its  fleet 
to  take  Gibraltar;  the  Bourbons  in  Spain,  and  the  house  of  Braganza  in 
Portugal  should  give  place  to  a prince  of  Napoleon’s  blood;  the  Pope  should 
lose  his  temporal  power,  and  his  kingdom  be  united  to  the  kingdom  of  Italv; 
the  towns  of  Africa,  as  Tunis  ami  Algiers,  should  be  occupied  by  the 
French,  and  given,  at  a general  peace,  as  a compens.ation  to  Sardinia; 


464 


APPENDIX  II. 


France  should  occupy  Malta  and  Egypt;  all  flags  but  those  of  France, 
Spain,  Italy,  and  liussia,  should  be  excluded  from  the  Mediterranean 
Even  an  attack  on  the  British  power  in  India  was  talked  of. 

1807,  October  27.  Secret  treaiies  of  Fontainebleau,  between  France  and 
Spain.  Portugal  was  to  be  divided  into  three  parts  specially  defined  : one 
was  to  be  given  to  the  King  of  Etruria,  in  lieu  of  Tuscany  transferred  to 
Napoleon  as  King  of  Italy,  one  to  be  bestowed  on  the  vile  Godoy,  Prince  of 
Peace,  and  one  unappropriated.  The  second  convention  fixes  the  number 
of  Spanish  and  other  troops  to  be  employed,  etc.  (Martens,  ■*  llec.,”  viii., 
701.)  Portugal  was  accordingly  occupied  by  Marshal  Junot  in  the  same 
autumn,  and  French  troops,  moving  down  into  the  north  of  Spain  also, 
treat  it  somewhat  as  a conquered  country.  Another  secret  treaty  is  said  to 
have  contemplated  ceding  the  jirovinces  north  of  the  Ebro  to  France,  and 
taking  Portugal  in  exchange.  The  royal  family  of  Spain  is  alarmed,  and 
there  is  talk  of  fleeing  to  America.  Tumults  break  out,  Godoy  is  put  down, 
and,  after  a series  of  intrigues,  the  king  and  his  son,  who  were  in  deadly 
quarrel,  meet  Napoleon  in  Bayonne:  the  father  is  induced  to  abdicate  the 
crown,  and  ihe  son,  with  the  two  other  infants,  signs  an  act  of  renunciation. 
A junta  at  IMadrid  is  induced  to  ask  that  Joseph  Bonaparte  may  be  the 
king.  He  is  appointed,  and  jMurat  takes  liis  place  as  King  of  Na[)les.  The 
spirit  of  the  Spanish  people  is  roused  against  the  F'rench.  A long  war 
ensues,  in  which  Portugal  is  wrested  from  the  French,  and  Spain  finally 
recovered,  tlirough  the  skill  of  AVellington,  the  resources  of  England,  and 
the  obstinacy  of  the  Spanish  character.  To  maintain  a great  army  in  the 
peninsula,  and  be  equal  at  the  same  time  to  his  enemies  on  the  east,  was 
too  much  for  Napoleon,  and  this,  with  the  expedition  into  Russia,  eaused 
his  overthrow. 

1809,  September  17.  Peace  of  Sweden  with  Russia,  made  at  Friedrichs- 
hamm,  in  which  Finland  and  AVest  Bothnia,  with  Aland  and  other  i^lands, 
are  ceded  to  the  latter  power.  In  1810  Sweden  made  a peace  with  Napo- 
leon, in  which  Swedish  Pomerania  and  the  isle  of  Riigen  are  restored  to 
her,  and  she  at^rees  to  adopt  the  continental  system.  (Martens,  “ Nouv. 
Rec.,”  i.,  19.)  " 

1809,  October  14.  Treaty  of  A^ienna,  between  Austria  and  France,  signed 
at  Schbnbrunn,  by  Napoleon,  October  15,  and  hence  sometimes  called  the 
Peace  of  Schonbrunn.  (Martens,  “ Nouv.  Rec.,”  i.,  210.)  The  disasters  of 
Prussia  in  the  last  war  with  Napoleon  had  roused  the  spirit  of  the  people, 
led  to  a better  military  system,  brought  men  more  upright  into  power,  and 
given  rise  to  a set  of  patriotic  clubs  (Tugendbiinde).  The  same  revival  of 
a German  feeling  spread  on  every  side,  into  Austria  and  the  lands  of  the 
Rhenish  league.  The  aristocratic  statesmen  of  Germany,  stung  by  the 
haughtiness  of  Napoleon,  encouraged  by  the  war  in  Spain,  and  thinking 
that  the  people  might  be  induced  to  rise  against  the  oppressor,  brought  on 
by  their  intrigues  the  fourth  war  of  Austria  with  revolutionary  France, 


APPENDIX  II. 


465 


while  as  yet  the  German  people  was  nnprepared  for  it.  In  this  war,  Prussia 
was  forced  to  remain  neutral,  and  Austria  had  no  aid;  for  the  expedition, 
sent  from  England  to  Walcheren,  was  too  late  and  too  unsuccessful  to  be 
of  any  use.  In  a short  campaign  the  Austrians,  although  little  iid'erior  to 
the  French  at  Aspern  and  AVagram,  became  disheartened,  and  the  armis- 
tice of  Znaym  prepared  the  way  for  the  Peace  of  Vienna  or  Schbnbrunn, 
which  Napoleon’s  situation  would  have  made  it  desirable  for  him  to  accept, 
had  the  terms  been  less  hard  for  the  other  party.  In  this  peace  — which 
was  declared  to  be  common  to  the  Confederation  of  the  llliine  and  the  other 
vassals  of  Napoleon — (1.)  Austria  placed  at  the  disposition  of  Napoleon, 
for  the  benefit  of  the  Confederation  of  the  Rhine,  Salzburg,  Berchtesgaden, 
and  part  of  Upper  Austria,  consisting  of  the  Inn-Viertel  and  the  Hausruck- 
Viertel.  This  territory  was  bestowed  upon  Bavaria.  (2.)  To  Napoleon, 
as  king  of  Italy,  were  ceded  the  county  of  Gbrz  (Gorizia)  and  principality 
of  Falkenbnrg  (Montefalcone),  forming  Austrian  Friuli,  the  city  and  gov- 
ernment of  Trieste,  Carniola,  the  Villach  cii’cle  in  Carinthia,  and  the  coun- 
try on  the  right  of  the  Save,  from  where  it  leaves  Carniola  to  the  frontier 
of  Bosnia,  or  half  of  Croatia,  tlie  Hungarian  littoral,  Fiume,  Austrian  Istria, 
etc.  These  became  the  Illyrian  provinces  with  a separate  French  govern- 
ment. By  this  cession  Austria  was  cut  off  from  the  sea,  but  was  allorved, 
except  for  English  commerce  and  prodiuds,  to  use  the  port  of  Fiume.  (3.) 
To  the  king  of  Saxony  were  ceded  some  Bohemian  villages  enclosed  in 
Saxony,  and  to  the  same  king,  as  Duke  of  Warsaw,  AVestern  or  New  Galicia, 
a district  around  Cracow,  and  a circle  in  East  Galicia.  AA’ieliczka  and  the 
salt  mines  were  to  be  common  to  Austria  and  the  Polish  duchy.  (4.)  To 
Russia  was  ceded  a territory  in  the  most  easterly  part  of  Old  Galicia,  which 
should  contain  400,000  inhabitants,  and  not  include  the  town  of  Brody. 
(5.)  The  Teutonic  Order  having  been  suppressed  within  the  Confederation 
of  the  Rhine,  the  Emperor  of  Austria  renounces  on  the  part  of  the  Arch- 
duke Anton)’,  who  was  the  Grand  Master,  this  dignity  conferred  by  the  Peace 
of  Presburg,  r.nd  consents  to  the  disposition  of  the  property  beyond  the 
limits  of  Austria  which  had  been  made.  The  employees  of  the  order  had 
pensions  promised  to  them.  — In  separate  and  secret  articles  (De  Garden, 
xii.,  13G),  the  Emperor  of  Austria  submits  to  a military  contribution  of 
eighty-five  millions  of  francs,  and  agrees  to  reduce  his  army  to  the  number 
of  1.50,000  of  all  kinds  of  troops,  so  long  as  the  maritime  war  of  France  with 
England  should  continue.  By  this  Peace  Austria  lost  over  43,000  square 
miles  of  territory,  with  4,500,000  inhabitants.  The  Tyrolese,  who  were 
making  a heroic  resistance  against  France  and  Bavaria,  were  given  up  to 
their  fate. 

1812,  May  20.  Peace  of  Bucharest,  between  Russia  and  Turkey.  The 
boundary  was  to  follow  the  Pruth,  from  the  point  where  it  came  out  of 
Moldavia,  to  the  Danube,  and  the  Danube  to  the  sea.  In  this  way  Bessa- 
rabia, with  the  towns  of  Ismail  and  Kilia,  and  a portion  of  Moldavia,  with 
.30 


466 


APPENDIX  II. 


the  fortresses  of  Choczim  and  Bender,  became  Russian.  Other  conquests 
were  restored.  Servia,  whicli  had  revolted,  was  to  receive  an  amnesty,  and 
to  remain  Turkish,  hut  wiili  the  interior  adininistralion  in  the  hands  of  the 
inliahitants.  (iMartens,  “ Nonv.  Kee.,”  iii.,  307.)  Tlie  navigation  of  the 
Danuhe  was  to  be  free  to  both  nations,  and  the  Straits  of  Constantinoi)le  to 
be  open  to  Russian  vessels  of  commerce,  as  well  as  to  those  of  other  powers 
friendly  to  the  Porte,  that  had  not  yet  obtained  that  privilege. 


TKi:.\TIES  OF  1814  AND  1815,  CONTAINING  THE  GKEAT  SYSTEM  OF 

FACIFICATIO.N  AND  READJUSTMENT  WHICH  FOLLOWED  THE  DOWN- 
FALL OF  NAPOLEON. 

The  Peace  of  Sciibnbrunn  humbled  the  last  enemy  capable  of  offering 
serious  resistance  upon  the  land  to  the  decrees  of  Napoleon;  and  the  con- 
sent of  the  Emperor  of  Austria  soon  afterward  to  give  his  daughter  in  mai-- 
riage  to  the  French  Emperor  at  once  showed  his  weakness  and  seemed  to 
bind  him  to  the  policy  of  the  conqueror.  Even  before  this  fourth  war  with 
Austria,  Napoleon  had  commenced  the  policy  of  uniting  parts  of  Europe  to 
his  Empire,  instead  of  controlling  them,  as  he  had  done  at  first,  by  his  vas- 
sals. A decree  dated  IMay  17,  1809,  from  his  camp  at  Vienna,  incorporated 
the  Papal  states  into  his  dominions.  Other  portions  of  Italy  were  subjected 
to  the  same  process.  The  Swiss  district  of  Valais  was  absorbed  in  the 
autumn  of  1810.  In  March  of  the  same  year  (Martens,  “Nouv.  Rec.,”  i., 
327)  he  forced  his  brother  Louis  to  cede  to  France  all  of  the  kingdom  of 
Holland  lying  to  the  left  of  the  Waal,  or  Diilch  Brabant,  Zeeland,  and  park 
of  Guelders.  Soon  after  the  abdication  and  llight  of  Louis  (July  9,  1810), 
the  whole  of  Holland  was  made  French  territory.  (Martens,  u.  s.,  338.) 
A decree  of  the  Senate  of  France  subjected  to  the  same  fate  all  the  north 
coast  of  Gei'inany,  as  far  as  to  the  sea  near  Llibeck,  comprising  Oldenburg, 
the  Hanse  towns,  W'erden,  parts  of  Hanover  and  Westphalia,  Lauenhurg, 
etc.  (Martens,  u.  s.,  346.)  Against  this  high-handed  proceeding  in  re- 
gard to  the  Duke  of  Oldenburg,  the  Emperor  .41exan(lcr,  his  near  connec- 
tion, protested,  who  had  already  taken  offense  at  the  enlargement  of  the 
grand  duchy  of  Warsaw,  effected  at  the  Peace  of  Schbnbrunn.  He  now 
instituted  a commercial  policy  hostile  to  the  views  of  Napoleon,  and  in 
1811  preparations  were  made  on  both  sides  for  war.  The  only  powers  from 
which  Russia  could  hope  for  concert  of  action  were  England  and  Sweden. 
Between  England  and  Russia  there  was  no  difficulty  in  arrano-ino-  an  alii- 
ance.  But  Sweden  was  slow  in  incurring  the  resentment  of  Napoleon.  At 
length,  after  Swedish  Pomerania  had  been  occupied  by  the  French,  Sweden 
made  an  alliance  with  the  Czar  (March  12,  1812),  agreeing,  in  the  event  of 
war,  to  put  30,000  men  into  Northern  Germany,  and  receiving  the  ])romise 
of  Alexander  that  he  would  aid  her  in  the  acquisition  of  Norway.  England 
and  Sweden  came  together  in  the  Peace  of  Oerebro  on  the  13th  of  July, 


APPENDIX  II. 


467 


1S12  (Martens,  u.  s.,  431),  and  on  the  13th  of  March,  1813,  England  made 
an  engagement,  similar  to  that  of  Russia  respecting  Norway,  jironiising 
also  a subsidy  of  a million  sterling  to  Sweden,  and  ceding  to  her  the  island 
of  Guailaloupe,  taken  from  the  French.  (Martens,  u.  s.,  558.)  It  was  of 
great  importance  in  the  subsequent  war  that  Sweden  allowed  the  Russian 
aiTOy,  Avhich  was  in  Finland,  and  was  to  aid  in  the  contjuest  of  Norway,  to 
be  employed  in  Poland,  and  that  the  Peace  of  Bucharest  left  another  army 
free  to  act  against  the  French  invader. 

Napoleon,  on  his  side,  made  new  treaties  of  alliance  with  Prussia  and 
Austria.  (February  24,  March  14,  1812,  Martens,  u.  s.,  417-431.)  In  the 
open  and  secret  articles  of  the  Prussian  Treaty,  it  is  agreed  that  Prussia 
shall  make  common  cause  with  France,  without  being  obliged  to  furnish 
troops  for  wars  in  Italy,  Turkey,  or  beyond  the  Pyrenees;  that  the  number 
of  such  troops  in  the  field,  in  the  event  of  war  with  Russia,  shall  be  20,000, 
besides  a large  garrison  force;  that  these  shall  be  kept  in  one  body  as  much 
as  possible,  and  be  used  in  preference  for  the  defense  of  the  Prussian  prov- 
inces, but  shall  be,  for  all  new  movements,  under  French  control;  that  any 
part  of  Prussia  included  within  the  lines  of  operations  shall  bo  open  to  the 
French  and  their  allies,  except  Upper  Silesia  and  the  city  of  Potsdam;  and 
that  provisions  and  munitions  of  war  shall  be  furnished  to  the  French 
troops,  to  be  charged  to  the  contributions  yet  due  from  Prussia  according 
to  the  Peace  of  Tilsit.  A promise  is  held  out  of  an  indemnity,  in  the  shape 
of  new  territory,  for  the  expenses  of  Prussia  in  the  war,  should  it  come  to 
a happy  issue.  The  fortresses  of  Glogau,  Custrin,  and  Stettin  were  still 
held  by  French  garrisons,  and  the  leading  patriots  had  to  quit  the  king's 
presence  and  service.  Austria  stipulateil  to  furnish,  as  her  contingent, 
30,00(7  troops  and  GO  pieces  of  cannon,  in  four  divisions,  under  an  Austrian 
commander,  subject  to  the  immediate  orders  of  their  own  sovereign.  The 
integrity  of  Turkey  is  guaranteed.^  In  case  of  the  reconstruction  of  the 
kingdom  of  Poland,  Austria  is  to  hold  Galicia,  or,  if  that  should  be  united 
to  the  Polish  monarchy,  the  Illyrian  provinces  in  exchange,  besides  being 
compensated  for  the  costs  of  the  war  by  the  acquisition  of  new  territory. 

Secured  thus  in  his  rear,  and  strengthened  by  the  forces  of  his  allies, 
Napoleon  crossed  the  Nicmen,  June  24,  1812,  too  late  in  the  season  for 
success,  and  returned  the  same  autumn  a fugitive,  his  vast  army  nearly  de- 
stroyed by  war,  famine,  and  cold.  The  wrath  of  the  German  people,  espe- 
cially of  humiliated  Prussia,  now  began  to  burst  forth  against  the  tyrant. 
The  first  impulse  was  given  by  General  York,  commander  of  the  Prussian 
contingent,  who,  on  the  30th  of  December,  1812,  without  the  privity  of  his 
sovereign,  in  a capitnlation  with  the  Russiin  General  Diebitsch.  agreed  to 
keep  liis  army  ncntral  in  a district  of  East  Pru''sia,  and  if  the  king  should 
not  sanction  the  agreement,  at  lea=t  to  observe  the  neutrality  for  two 
months.  (Martens,  u.  s.,  556.)  The  king  was  alarmed,  but  dragged  for- 
ward by  the  boiling  spirit  of  the  people.  A treaty  made  not  long  after  this 


468 


APPENDIX  II. 


between  Russia  and  Prussia,  wliieh  has  not  seen  the  light,  provided  it  is 
said,  that  Prussia  should  recover  the  territory  which  she  held  before  1806, 
e.xccpt  Hanover,  and  should  furnish  80,000  men  for  the  war,  against  150,000 
to  be  furnished  by  Russia.  Help  was  to  be  sought  in  the  shape  of  an  alli- 
ance with  Austria,  and  of  subsidies  for  Prussia  from  England.  On  the 
I9ih  of  March,  1813  (Martens,  u.  s.,  564),  a convention  was  made  between 
Russia  and  Prussia,  in  which  a proclamation  was  agreed  upon,  inviting  the 
princes  and  people  of  Germany  to  unite  for  the  liberation  of  their  country. 
Every  German  prince  who  should  not  respond  to  this  appeal  within  a givcm 
time,  should  be  menace<l  with  the  loss  of  his  estates.  A council  of  admin- 
istration also  was  provided  for,  fortified  with  unlimited  powers  for  the  carry- 
ing on  of  the  war,  es[)ecially  for  occupying  and  controlling  the  parts  of 
Northern  Germany  yet  under  French  inllucnce.  On  the  27th  of  March  war 
was  declared  against  France,  and  the  Prussians  en  masse  formed  an  army 
of  volunteers.  The  Duke  of  Mecklenburg,  the  Duke  of  Aidialt-Dessau,  the 
city  of  Hamburg,  soon  followed  the  example  of  Prussia.  The  summer  of 
1813  was  full  of  negotiations  relating  to  the  war,  the  principal  of  which 
were;  (1.)  Conventions  at  Reichenbaoh  in  the  middle  of  June,  between 
Gr  eat  Britain  on  the  one  part  and  Russia  and  Prtissia  on  the  other.  The 
parties  agree  to  carry  on  the  war  with  energy,  the  first  engaging  to  furnish 
subsidies,  and  the  others  to  have  in  the  field  160,000  and  80,000  soldiers  re- 
spectively. Prussia  promises  to  aid  the  Brunswick  houses  in  recovering  their 
territory,  and  England  is  to  have  the  use  and  cooperation  of  the  Russian 
fleet.  (IMartens,  u.  s.,  568.)  (2  ) An  armistice  was  made,  June  5,  between 

the  belligerents,  Austria  acting  as  mediator,  which  was  to  continue  until 
August  10  : meanwhile  a Peace  Congress  sat  at  Prague  without  effecting 
or  being  expected  to  effect  anything.  (Martens,  u.  s.,  582.)  (3.)  Aus- 

tria at  length  forsook  Napoleon  decisiveljg  and  joined  the  alliance  of  the 
three  great  powers  by  treaties  signed  at  Tdplitz,  September  9,  agreeing  to 
furnish  a quota  of  60,000  troops,  and  fo  make  no  peace  unless  in  common 
with  the  allies.  (Martens,  u.  s.,  596.)  (4.)  Bavaria,  by  a treaty  with 

Austria,  dated  October  8,  and  in  the  course  of  the  autumn,  but  not  until 
the  battle  of  Leipzig  had  decided  the  campaign  against  Napoleon,  the  other 
members  of  the  Rhenish  Confederation  joined  the  allies,  and  this  creation 
of  the  French  Emperor  was  dissolved.  (5.)  In  the  winter,  January  11, 
1814,  Murat,  King  of  Naples,  separated  his  cause  from  that  of  Napoleon 
in  a treaty  with  Austria,  for  the  purpose  of  retaining  possession  of  his 
kingdom.  (IMartens,  u.  s.,  660.)  (6.)  The  treaties  of  Kiel,  made  by  Den- 

mark with  Sweden  and  with  Great  Britain,  January  14,  1814,  and  one 
with  Russia,  signed  at  Hanover,  February  8,  1814,  separated  from  Napo- 
leon his  last  and  most  honorable  ally.  Denmark  engaged  to  ]ilacc  10,000 
men  for  the  war  under  the  control  of  Bernadotte,  ])rince  royal  of  Sweden, 
and  renounced  possession  of  Norway  in  favor  of  Sweden,  who  in  return 
ceded  to  Denmark  Pomerania  and  the  Isle  of  Riigen,  promising  her  good 


APPENDIX  II. 


469 


offices  for  some  further  indemnification.  Great  Britain  pledged  its  efforts 
for  the  same  purpose,  and  restored  all  territory  gained  by  conquest  from 
Denmark,  excepting  the  Isle  of  Heligoland.  (Martens,  u.  s.,  i.,  667-683.) 
— Denmark  afterward,  in  a treaty  signed  at  Vienna,  June  4,  1815,  ceded 
Swedish  Pomerania  and  lliigen  to  Prussia,  receiving  in  return  the  duchy 
of  Lauenburg,  except  the  amt  or  bailiwick  of  Neuhaus,  together  with  a 
payment  of  two  million  thalers  and  of  a considerable  sum  of  money  due 
from  Sweden.  (Martens,  u.  s. , ii.,349.) 

As  the  allied  armies  reached  the  Rhine  and  entered  France,  various  ne- 
gotiations were  set  on  foot,  looking  toward  peace  and  the  readjustment  of 
the  political  state  of  Europe.  The  most  important  were,  (1.)  The  Con- 
gress of  Chatillon,  from  February  5 to  March  19,  1814,  in  which  Napoleon, 
hoping  still  for  success  in  the  war,  made  too  high  terms,  so  that  nothing 
was  effected.  (Corap.  Martens,  u.  s.,  i.,  688.)  (2.)  While  this  Congress 

was  in  session,  a new  treaty  was  made  between  the  four  great  powers  at 
Chaumont,  March  1,  1814.  England  was  to  furnish  to  the  other  powers  a 
subsidy  of  five  millions  sterling  for  the  year  1814,  and  the  parties  were  to 
keep  in  the  field  an  army  of  150,000  men  each,  to  aid  one  another  in  case 
of  attack,  etc.  (Martens,  u.  s.,  683.)  Secret  articles  are  said  to  have  set- 
tled the  relations  of  Europe  on  the  basis  afterward  adopted.  (3.)  The 
capitulation  of  Paris,  March  31,  1814.  (4.)  The  abdication  of  Napoleon, 

in  a treaty  made  by  him  with  Austria,  Russia,  and  Prussia,  April  11,  to 
which  England  acceded,  as  to  the  main  points,  April  27.  Napoleon  re- 
nounces all  right  of  sovereignty  in  France  and  everywhere  else  for  himself, 
his  family,  and  his  descendants.  His  domains  in  France  are  to  go  to  the 
crown.  He  and  the  Empress  are  to  preserve  their  titles  during  life,  and 
his  near  connections  are  to  be  styled  princes  of  his  family.  The  Isle  of 
Elba  is  given  him  as  his  principality,  with  an  annual  revenue  of  two  mil- 
lion francs,  chargeable  to  France,  one  half  reversible  to  the  Empress,  and 
the  duchies  of  Parma,  Piacenza,  and  Guastalla  are  assigned  to  the  Empress 
Maria  Louisa.  From  these  duchies  their  son  is  to  derive  his  title.  Two 
and  a half  millions  of  francs  are  granted  as  an  annual  revenue  to  members 
of  his  family;  Josephine  also,  and  Eugene  Beauharnois,  are  provided  for. 
Napoleon  is  to  have  an  armed  corvette  and  a guard  of  400  men  at  his  dis- 
posal. The  allied  powers  promise  that  France  shall  adopt  and  guarantee 
this  treaty.  (Martens,  u.  s.,  i.,  696.) 

The  immediate  arrangements  consequent  upon  the  downfall  of  Napoleon 
were  made,  — 

1814,  May  30,  at  the  first  Peace  of  Paris,  consisting  of  treaties,  nearly 
identical,  between  France,  now  under  Louis  XVIIL,  and  each  of  the  four 
great  powers.  (Martens,  “ Nouv.  Rec.,”  ii.,  1-18.)  The  limits  of  France 
are  by  this  treaty  to  be  what  they  were  in  1792,  with  some  augmentations 
on  the  eastern  fi’ontier,  which  are  particularly  specified.  France  renounces 
all  sovereignty  over  districts  in  Europe  outside  of  these  limits.  Monaco  is 


470 


APPENDIX  II. 


to  be  as  it  was  before  1792,  and  Avignon,  the  Venaissin,  Montbelliard,  and 
all  other  enclaves  within  these  limits  are  to  be  French  territory.  Great 
Britain  retains  IMalta,  Tobago,  and  St.  Lucia,  the  Isle  of  France  with  its 
dependencies,  and  the  part  of  St.  Domingo  which  Spain  ceded  to  France  in 
the  treaty  of  Basel  in  1795,  and  which  Great  Britain  engages  to  cede  back 
to  his  Catholic  Majesty.  All  other  places  gained  by  conquest  from  France, 
rights  of  fishery,  etc.,  she  places  on  the  footing  of  1792.  Sweden  restores 
Guadaloupe  to  France,  and  Portugal  restores  French  Guiana,  as  it  was  at 
that  date.  (For  other  arrangements  see  the  next  article.) 

By  a separate  and  secret  article  of  this  treaty,  which  appears  in  Mur- 
hard’s  “ Noiiv.  Supj)l.,”  i.,  329,  the  disposal  of  the  territories  renounced  by 
France  in  the  open  treaty,  and  the  relations  tending  to  produce  a system 
of  real  and  durable  equilibrium  in  Eurojje,  were  to  be  decided  upon  by  the 
allied  powers  among  themselves.  Thus,  France  was  to  have  no  voice  in  the 
leading  measures  of  the  coming  Congress.  But  in  fact,  at  the  Congress  of 
Vienna,  the  adroit  audacity  of  Talleyrand  and  (he  disagreement  of  the 
allies  between  themselves  secured  for  Franco  a considerable  amount  of  in- 
fluence. 

1815,  June  9.  Final  act  of  the  Congress  of  Vienna,  the  most  import- 
ant document,  in  an  international  respect,  of  modern  times.  The  Peace 
of  1814,  just  spoken  of,  provided  for  the  meeting  of  such  a congress 
within  two  months,  in  order  to  complete  the  arrangements  there  begun,  but 
it  was  not  opened  until  November  1,  1814.  It  closed  June  11,  1815.  Eight 
powers  composed  the  Congress,  Great  Britain,  Russia,  Austria,  Prussia, 
France,  Spain,  Portugal,  and  Sweden;  but  the  Spanish  representative  re- 
fused his  signature,  on  account  of  the  dispositions  touching  the  three  Italian 
duchies  of  Parma,  Piacenza,  and  Guastalla,  as  well  as  for  other  reasons 
affecting  the  pride  of  Spain.  The  Congress  was  for  some  time  seriously  dis- 
turbed by  the  claim  of  Russia  to  appropriate  the  entire  grand  duchy  of 
Warsaw,  and  of  Prussia  to  swallow  up  Saxony.  "What  should  be  done  with 
Belgium  was  also  a problem  of  some  difficulty.  In  March  the  alarming 
news  reached  the  Congress  that  Napoleon  had  left  Elba,  that  he  had  landed 
in  France,  that  he  had  recovered  his  throne  without  a struggle.  He  was 
put  under  the  ban  of  Europe,  a new  compact  was  made  by  the  four  great 
powers  with  many  accessories,  on  the  25th  of  IMarch,  for  the  maintenance 
of  the  Peace  of  Paris,  and  in  June  the  field  of  Waterloo  baffled  this  attempt 
of  the  -wonderful  man  to  regain  his  lost  power. 

The  Congress  of  Vienna  was  a meeting  of  dictators  for  arranging  the 
affairs  of  Europe  according  to  their  arbitrary  views,  and  in  effect  required 
the  sai.aller  powers  to  submit  to  their  decrees,  without  a share  in  their  de- 
liberations. To  perfect  the  arrangements  which  appear  in  the  final  act,  a 
multitude  of  special  compacts  had  to  be  made,  some  of  which  were  annexed 
to  that  instrument,  and  declared  to  be  a part  of  it.  For  the  final  act  see 
Martens,  u.  s.,  ii.,  379;  Martens  and  Cussy,  iii.,  61 ; Wheaton’s  “ Int.  Law,” 


APPENDIX  II. 


471 


Appendix;  Kliiber’s  “ Actcn  dcs  Wiener- Congress ; ” and  comp.  Flassan, 
“ Hist,  du  Cong,  de  Vienne,”  8 vols.,  Paris,  1829. 

The  leading  points  of  this  instrument  are  the  following:  — 

1.  The  grand  duchy  of  Warsaw  was  united,  as  a kingdom  of  Poland, 
under  a distinct  administration,  to  the  liussian  empire,  with  the  exception 
(1)  of  the  territory  restored  to  Prussia,  under  the  name  of  the  Grand  Duchy 
of  Posen;  (2)  of  the  districts  in  Eastern  Galicia  taken  from  Austria  by  the 
treaty  of  Schdnbrunn  and  now  restored;  (3)  of  Cracow  and  a territory 
around  it,  which  was  constituted  into  a free  neutral  republic,  the  privileges 
of  which  are  defined  in  a treaty  anne.xed  to  the  final  act.  ‘‘The  Poles,”  it 
is  stipulated,  ‘‘  subjects  of  Russia,  Austria,  and  Prussia,  respectively,  shall 
have  a representation  and  institutions  of  a national  character,  regulated  by 
the  mode  of  political  existence,  which  each  of  the  governments,  to  which 
they  appertain,  shall  judge  it  useful  and  suitable  to  grant  to  them.” 

2.  Prussia,  having  thus  lost  a considerable  part  of  its  Polish  spoils,  was 
anxious  to  get  the  whole  of  Saxony  into  its  hands,  whose  king,  as  the  vas- 
sal of  Napoleon,  found  no  favor  in  the  new  adjustments  of  Germany;  but 
Austria  was  jealous  and  pi'evented  this,  so  that  only  a part  of  Saxony,  seven 
thirteenths  of  the  territory  and  two  fifths  of  the  population,  became  Prus- 
sian. The  former  territory  of  Prussia,  such  as  it  was  before  the  Peace  of 
Tilsit,  was  in  general  restored.  New  acquisitions  on  the  east  side  of  the 
Rhine,  besides  the  part  of  Saxony  just  spoken  of,  were  a portion  of  Fulda 
and  of  llanau,  the  city  of  Wetzlar  with  its  territory,  the  duchy  of  Berg  with 
lands  formerly  belonging  to  the  bishojn-ic  of  Cologne  and  more  lately  incor- 
porated in  this  duchy,  the  duchy  of  AVestphalia,  such  as  it  was  under  the 
Grand  Duke  of  Hesse,  the  county  of  Dortmund,  Corvey,  the  lands  of  sundry 
mediatized  princes,  and  the  possessions  of  the  house  of  Nassau-Dietz,  ceded 
by  the  King  of  the  Netherlands,  or  their  equivalents  received  in  exchange 
for  them  from  other  members  of  the  house  of  Nassau.  On  the  west  bank 
of  the  Rhine,  Prussia  acquired  a territory  which  was  formerly  in  the  main 
the  duchy  of  Jnliers,  and  part  of  Cloves  and  Guelders  and  of  the  two  arch- 
bishoprics of  Cologne  and  Treves. 

3.  The  King  of  Great  Britain,  as  King  of  Hanover,  received  from  Prus- 
sia, Hildesheim,  Goslar,  East  Friesland,  the  lower  county  of  Lingen,  and 
part  of  Prussian  Munster;  and  ceded  to  Prussia  the  parts  of  the  duchy  of 
Lauenburg  lying  east  of  the  Elbe,  with  other  smaller  districts.  Lauenburg 
was  soon  transferred  to  Denmark.  (See  Peace  of  Kiel,  p.  4G8.)  Hie  com- 
merce on  the  Ems,  and  at  Embden,  which  now  became  a Hanoverian  port, 
was  to  be  open  to  Prussian  merchants  without  restriction,  and  Hanover  en- 
gaered  to  keep  the  river  in  a navigable  condition  within  its  own  territory. 

4.  Austria  recovered  nearly  all  that  she  lost  in  1797,  by  the  treaty  of 
Campo  Formio  or  afterward,  whetber  in  or  out  of  Germany,  except  the 
Austrian  Netherlands,  and  acquired  that  part  of  the  Venetian  lands  in  the 
peninsula  which  Napoleon  appropriated,  and  all  other  territory  between 


472 


APPENDIX  II. 


the  Tessin,  the  Po,  and  the  Adriatic,  tofjether  with  the  Valtelline,  Bormio, 
and  Chiavanna,  formerly  pertaining  to  the  Orisons,  as  well  as  the  formei 
republic  of  Ragiisa. 

5.  The  duchy  of  Wiirzburg,  as  the  Peace  of  Presburg  made  it  in  1805, 
and  the  principality  of  Aschaffenbiirg,  which  formed  a part  of  Napoleon’s 
grand  duchy  of  Frankfort,  were  given  to  Bavaria. 

6.  The  city  of  Frankfort  was  restored  to  its  condition  in  1803. 

7.  In  lieu  of  the  duchy  of  AVestphalia,  the  Grand  Duke  of  Hesse  acquired 
a territory  on  the  left  bank  of  the  Rhine,  in  the  late  department  of  Mt. 
Tonnerre,  containing  140,000  inhabitants.  The  Landgrave  of  Ilesse-Hom- 
burg  was  restored  to  his  estates,  from  which  he  had  been  ejected  in  conse- 
quence of  the  formation  of  the  Confederation  of  the  Rhine.  Several  princes 
— the  last  named,  the  dukes  of  Oldenburg,  Mecklenburg- Strelitz,  Saxe- 
Coburg  — received  grants  of  territory  on  the  Prussian  frontier  beyond  the 
Rhine,  in  the  late  French  department  of  the  Sarre,  which  was  to  be  placed 
under  Prussian  protection,  and  to  serve  as  small  change  in  future  adjust- 
ments. All  German  lands  not  before  disposed  of,  on  the  left  bank  of  the 
Rhine,  were  given  to  Austria. 

8.  The  Germanic  body,  including  the  King  of  Denmark  as  Duke  of  Hol- 
stein, and  the  King  of  the  Netherlands  as  Grand  Duke  of  Luxemburg,  was 
constituted  into  a confederation  of  members,  equal  in  rights,  thirty-eight  in 
number,  with  seventeen  votes  in  an  ordinary  assembly,  and  sixty-nine  votes 
in  a general  assembly,  in  which  latter  organic  laws  and  other  affairs  of  great 
importance  were  to  be  brought  forward.  The  Diet  was  to  be  permanent, 
under  the  presidency  of  Austria,  to  meet  at  Frankfort,  and  to  adjourn  for 
not  more  than  four  months.  In  a general  assembly  a vote  of  two  thirds 
was  reejuired  for  the  passage  of  any  measure.  The  confederation  being 
intended  for  the  protection  of  all  Germany,  and  of  each  member  against 
foreign  powers,  no  member  was  allowed  to  negotiate  or  make  truce  or  peace 
with  any  state  with  which  the  confederation  should  be  at  war.  Differences 
between  the  confederates  were  to  be  pursued  without  force  of  arms,  and 
submitted  to  the  Diet,  which  should  intervene  between  the  parties  in  the 
first  instance  by  a mediating  committee,  and,  if  a judicial  sentence  should 
be  necessary,  by  an  “ Austriigalinstanz  ” or  court  of  high  arbitration.  In 
an  extreme  case,  a militaiy  execution  of  a decree  resisted  by  a refractory 
member  of  the  confederation  might  be  ])ut  into  the  hands  of  members  not 
directly  interested  in  the  affair.  In  the  “act  concerning  the  federative 
constitution  of  Germany  ’’  (Martens,  u.  s.,  353),  which  accompanies  the 
final  act,  it  is  declared  that  in  the  states  of  the  confederation  there  shall  be 
assemblies  of  estates  or  of  deputies  (“  cine  landesstiindliche  verfassung 
that  all  Christian  confessions  shall  enjoy  equality  of  civil  and  political 
rights ; and  that  the  civil  disabilities  of  the  Jews  ought  to  be  removed  as 
far  as  practicable.  To  the  mediatized  nobility,  who  had  before  1806  an 
immediate  connection  with  the  empire,  privileges  were  allowed  in  respeet 


APPENDIX  II. 


473 


to  rank,  taxation,  privileged  courts,  exemption  from  military  duty,  the  ex- 
ercise of  civil  and  criminal  jurisdiction  over  the  settlers  on  their  estates  in 
the  first  instance,  and,  when  their  estates  were  great  enough,  in  the  last 
instance.  The  act  of  confederation  was  amended  in  1820,  1832,  and  1834; 
overthrown  in  1848-1849,  and  restored  in  1851. 

9.  The  Dutch  United  Provinces,  with  the  larger  pai-t  of  the  Austrian 
Netherlands,  were  constituted,  as  the  Peace  of  Paris  had  determined,  into  a 
Kingdom  of  the  Netherlands,  under  the  Prince  of  Orange-Nassau,  to  which 
territories  the  Grand  Duchy  of  Luxemburg,  including  a part  of  the  duehy 
of  Bouillon  not  ceded  to  France,  was  added,  by  way  of  compensation  for 
German  possessions  parted  with  by  the  Orange  family.  Luxemburg  re- 
mained a German  state  and  made  the  King  a member  of  the  Diet.  The 
town  of  Lu.xeinburg  was  to  bo  a fortress  of  the  Confederation.  — In  a eon- 
vention  signed  at  London,  August  13, 1814  (Martens, u.  s.,  iii.,  57),  England 
engaged  to  restore  to  Holland  all  the  colonies,  factories,  and  establishments 
she  had  gained  by  conrjuest  since  1803,  excejit  the  Cape  of  Good  Hope, 
D einarara,  Esseqnibo,  and  Berbice. 

10.  The  relations  of  Switzerland  are  determined  by  a declaration  of  the 
powers  forming  the  Congress,  dated  March  20, 1815  (Martens,  u.  s.,ii.,  157), 
by  the  act  of  accession  of  the  cantons  of  the  same  date  (Ibid.,  1 73),  and  by 
the  final  act.  Switzerland  is  to  take  the  relation  of  perpetual  neutrality 
(§  1G3),  and,  in  order  to  secure  this  end  the  better,  a treaty  with  the  King 
of  Sardinia,  of  May  26,  1815,  provides  that  the  provinces  of  Chablais  and 
Faucigny,  south  of  Lake  Leman,  and  all  of  Savoy  north  of  Ugine  shall 
assume  the  same  neutral  attitude.  To  the  old  nineteen  cantons,  Geneva, 
Valais,  and  Neufchatel  are  added  — the  latter  under  Prussian  sovereignty, 
which  continued  from  the  Peace  of  Utrecht  until  1848.  The  territory  of 
Geneva  is  enlarged  by  a cession  of  a small  district  in  Savoy.  The  routes 
from  Geneva  along  the  lake  in  both  directions  — by  Versoix  in  France 
toward  the  canton  of  Vaud,  and  by  the  route  of  the  Simplon  through  Savoy 
toward  Valais — are  to  be  exempt  from  transit  dues  and  examination  of 
merehandise.  The  former  bishopric  of  Basel  and  most  of  the  territory  of 
Bienne  are  united  to  the  canton  of  Berne. 

11.  Sardinia  g.iined  the  tr.acts  called  the  imperial  fiefs,  which  had  been 
attached  to  the  Ligurian  Bejniblic  of  Napoleon,  and  the  territory  of  the 
former  Republic  of  Genoa,  including  the  island  of  Capraja.  The  limits  of 
this  kingdom  are  nearly  the  same  as  in  1792,  but  the  boundary  of  France, 
as  determined  by  the  fir.-t  Treaty  of  Paris,  is  made  to  take  in  a portion  of 
Savoy  then  contained  in  the  French  Department  of  Mont  Blanc,  namely, 
most  of  the  sub-prefectures  of  Chambery  and  Annecy. 

12.  The  Archduke  Francis  of  Este,  his  heirs  and  successors,  were  to  hold 
the  duchies  of  Modena,  Reggio,  and  Mirandola,  according  to  the  limits 
which  they  had  by  the  treaty  of  Campo  Formio.  The  Archduchess  Maria- 
Bcatrix  of  Este,  her  heirs  and  successors,  were  to  hold  the  principalities  of 


474 


APPENDIX  II. 


Massa  and  Carrara,  with  the  imperial  fiefs  in  Lnnigiana,  whic-h  last  might 
be  c.xfhanged  for  other  properties  between  hlodena  and  Tuseany  at  the  will 
of  the  parties.  — Tuseany,  as  it  was  before  the  Treaty  of  Luneville,  was 
restored  to  the  Duke  of  the  Austrian  line,  Ferdinand,  his  heirs  and  sueces- 
sors,  and  to  this  territory  were  added  the  part  of  Elba  formerly  under  the 
suzerainty  of  the  King  of  the  Two  Sieilies,  Piombino,  certain  imperial  fiefs 
formerly  enclosed  in  Tuscany,  and  “ I’etat  des  Presides,”  — The  duchies  of 
Parma,  Piacenza,  and  Guastalla  were  granted,  as  was  provided  by  the 
'•  Treaty  of  Abdication  of  Napoleon”  (see  p.  469),  to  the  Empress  Alaria 
Louisa,  and  the  reversibility  of  these  territories  — saving  the  old  rights  of 
reversion  of  Austria  and  Sardinia  — was  to  be  determined  by  common 
agreement  between  the  five  leading  powers  and  Spain.  Such  an  agreement 
was  made  at  Paris,  June  10,  1817.  (Martens,  “N.  R.,”  iv.,  416  et  seq.)  It 
related  especially  to  the  Spanish  ducal  house  of  Lucca.  — The  Congress  of 
Vienna  established  the  Infanta  Maria  Louisa  and  her  male  heirs  in  Lucca 
as  a duchy,  added  to  the  revenues  of  the  duchy  a rent  of  150,000  francs,  to 
be  paid  by  Austria  and  Tuseany;  and  gave  the  reversion,  in  case  of  failure 
of  the  line  or  their  removal  to  another  cstallishment,  to  Tuscany.  The  Duke 
of  Tuscany  engaged  to  cede  certain  districts  to  the  Duke  of  INIodena,  when- 
ever the  reversion  of  Lucca  should  fall  to  him,  namely,  Fivizzano,  Pietra 
Santa,  Barga,  and  others.  By  the  treaty  above  mentioned,  of  June  10, 
1817,  it  was  agreed  that,  after  the  decease  of  the  Empress  Maria  Louisa, 
her  duchies  of  Parma,  Piacenza,  and  Guastalla- — with  the  exce])tion  of 
certain  districts  on  the  left  bank  of  the  Po,  enclosed  in  the  dominions  of 
Austria,  which  should  belong  to  that  powder  — should  go  to  the  Luechese 
house.  The  reversion  of  these  duchies,  in  case  of  the  extinction  of  the 
branch  of  the  Infant  Don  Charles  Louis,  was  to  follow  the  provisions  of  the 
Treaty  of  Ai.x-la-Chapellc  (1748),  and  of  a separate  article  of  the  Treaty 
of  1815,  between  Austria  and  Sardinia.  (See  Martens,  “N.  R.,’’  ii.,  298,  and 
for  that  article  IMurhard,  xv.,  41.)  This  separate  article  confirms  the  rights 
of  reversion  of  Sardinia  to  the  Duchy  of  Piacenza,  but  adds  that  the  city 
of  Piacenza  with  a radius  of  2,000  toiscs  from  the  crest  of  the  glacis  shall 
appertain,  in  case  of  such  reversion,  to  Austria,  for  which  she  shall  give  to 
Sardinia  contiguous  territory  equivalent  in  population  and  revenue.  — Ihe 
Holy  See  was  restored  to  the  possession  of  its  former  territoiy,  namely,  the 
Marches  with  Camerino  and  their  dependencies,  Ponte-Corvo,  the  legations 
of  Bologna,  Ravenna,  and  Ferrara,  e.xcept  that  part  of  the  latter  situated 
on  the  left  hank  of  the  Po.  Austria  was  to  hawc  the  right  of  garrison  in 
Ferrara  and  Comacchio. — The  King  of  Naples,  Ferdinand  IV.,  was  re- 
established on  the  throne  of  the  Two  Sicilies. 

13.  The  allies  encase  to  use  their  best  endeavors  to  induce  Spain  to 
yield  up  Olivenza  and  other  places  gained  hy  the  treaty  of  Badajos  in  1801 
to  Portugal.  The  restitution  of  French  Guiana  to  Portugal  has  been  ah 
ready  mentioned. 


APPENDIX  II, 


475 


14.  For  the  arrangements  of  the  Congress  in  regard  to  river  navigation, 
comp.  § G2,  and  IMartens,  u.  s.,  434.  For  its  ride  touching  the  rank  of  am- 
bassadors, comji.  § 98,  and  ]\lartens,  u.  s.,  449.  For  the  declaration  con- 
cerning the  slave-trade,  see  Martens,  u.  s.,  432. 

The  treaties  and  arrangements  of  the  Congress  of  Vienna,  together  with 
those  of  Paris,  in  181.5,  consisted  of  a great  number  of  political  readjust- 
ments consequent  upon  the  fall  of  the  Fi-euch  Empire.  The  new  order  of 
things  was  as  much  subject  to  changes  in  opinion,  new  combinations  of  in- 
|terests,  and  new  aggressions  as  the  old  had  been.  But,  perhaps,  never  in 
the  history  of  the  world  has  so  vast  a fabric  been  so  completely  demolished 
in  so  short  a time.  Si.xty  years  have  chang^'d  the  jiolitical  map  of  a great 
part  of  Europe.  Holland  and  Belgium,  united  in  1815,  suffered  disrup- 
tion in  1830.  Germany  has  become  a new  empire  under  the  hegemony  of 
Prussia,  with  the  old  leader  of  the  Confederacy  left  out.  Denmark  has 
been  stripped  of  a large  part  of  her  territory,  and  has  ceased  to  be  a Ger- 
manic power.  Austria  has  lost  all  her  Italian  territory  in  addition  to  her 
exclusion  from  Germany.  The  kingdom  of  the  Two  Sicilies,  Lombardy, 
the  Ecclesiastical  State,  and  the  jirincipalities  have  been  merged  in  a King- 
dom of  Italy,  which  has  grown  up  out  of  the  Kingdom  of  Sardinia.  Sa- 
voy and  Nice  have  been  united  to  France,  which  in  turn  has  lost  Alsace 
and  p.art  of  Lorraine.  All  this  began  in  the  extinction  of  the  little  rejmb- 
lie  of  Cracow.  And  if  we  add  changes  not  connected  with  the  Congress 
of  Vienna,  the  independence  of  Greece,  and  Sjiain’s  loss  of  nearly  all  her 
colonies;  the  changes  of  government  in  France,  the  new  relations  of  the 
Christian  principalities  in  Turkey  to  that  empire,  there  will  remain  scarcely 
a state  except  Great  Britain,  Sweden  and  Norway,  Switzerland,  and  Rus- 
sia, which  has  not  been  in  this  age  essentially  affected  by  violent  revolu- 
tion. No  series  of  events  in  the  world  has  shown  so  strikingly  in  so  short 
a time,  the  emptiness  of  artificial  arrangements,  and  the  powerlessness  of 
sovereigns  to  settle  an  order  of  things  for  the  distant  future. 

1814,  December  24.  Treaty  of  peace  made  at  Ghent,  between  Great 
Britain  and  the  United  States.  (Martens,  u.  s.,  ii.,  76,  in  a French  trans- 
lation.) Its  leading  features  are  general  restitution,  provision  for  the  ar- 
rangement of  boundaries,  silence  on  the  subject  of  maritime  rights  and 
the  impressment  of  seamen,  and  an  engagement  of  the  parties  to  endeavor 
to  put  an  end  to  the  slave-trade.  (Comp.  §§  59,  217.) 

1815,  November  20.  Second  Treaty  of  Paris,  after  Napoleon's  final 
downfall,  consisting  of  four  separate  instruments,  of  th'*.  same  tenor,  be- 
tween France  and  each  of  the  four  great  powers.  By  this  treaty,  (1.)  The 
limits  of  France  towards  Be’gium,  Germany,  and  Savoy,  were  somewhat 
narrower  than  the  Peace  of  1814  had  made  them,  being  brought  back 
nearly  to  the  lino  of  1790.  In  this  way  the  fortresses  of  Philippeville  and 
Marienburg,  with  the  whole  of  the  duchy  of  Bouillon,  instead  of  a part  of 
it,  were  transferred  to  the  kingdom  of  the  Netherlands;  Saarlouis,  Saar- 


476 


APPENDIX  II. 


briick,  and  the  course  of  the  Saar  became  Prussian;  the  fort  of  Landau, 
and  a French  tract  on  the  right  of  the  Lauter  went  ultimately  to  Bavaria; 
half  the  biddge  between  Strasburg  and  Kehl  pertained  to  Baden ; a portion 
of  the  district  of  Gex  on  Lake  Leman,  between  the  cantons  of  Vaud  and 
Geneva,  was  added  to  the  latter;  and  the  districts  of  Chamberyand  Annecy 
were  restored  to  Sardinia.  The  neutrality  of  Switzerland  and  of  a part 
of  Savoy  was  extended  to  a district  defined  by  a line  drawn  from  Ugine 
(sec  act  of  the  Congress  of  Vienna),  through  the  lakes  of  Annecy  and 
Bourget  to  the  Rhone.  The  French  fortress  of  Huningue  (Hiinningen), 
near  Basel,  was  to  be  demolished.  (2.)  An  indemnity  of  seven  hundred 
million  francs  was  to  be  paid  to  the  allies.  Their  troops,  not  exceeding 
150,000  in  number,  were  to  have  military  occupation  of  France,  at  the  ex- 
pense of  the  country,  in  certain  specified  places,  for  not  more  than  five 
years,  but  might  be  withdrawn  at  the  end  of  three  years,  if  the  security  of 
Europe  should  permit.  (Martens,  u.  s.,  ii.,  682).  By  a convention  of  the 
four  powers  and  France,  made  at  Paris,  Novembers,  1815,  the  seven  Io- 
nian Islands  were  to  constitute  a free  state  under  the  protectorate  of  Great 
Britain,  with  a resident  lord  high  commissioner  appointed  by  that  power,  a 
legislative  assembly,  etc.;  the  military  force  of  the  islands  to  be  com- 
manded and  their  forts  to  be  garrisoned  by  Great  Britain  — the  British 
garrisons  being  paid  by  the  republic.  [These  islands,  long  Venetian,  then 
the  prey  of  Franee  (Treaty  of  Campo  Formio,  1797),  then,  after  being  for 
a short  time  left  to  themselves,  first  under  Turkish  and  afterwards  under 
Russian  protection,  then  restored  to  France  (Peace  of  Tilsit,  1807),  and 
conquei'ed  by  England,  have  recently  passed  from  under  the  protectorate 
of  England  into  union  with  the  kingdom  of  Greece,  1863.]  (Martens,  u. 
s.,  663.)  The  works  of  art  which  Napoleon  had  gathered  from  various 
countries  of  Europe  were  restored  by  another  special  instrument  to  their 
former  owners.  (Martens,  u.  s.,  632,  onward.) 


TREATIES  OF  THE  AGE  OF  REACTION  AND  INTERVENTION.  PROMI- 
NENCE OF  QUESTIONS  RELATING  TO  TURKEY  AND  TO  ITALY. 

1815,  September  26.  The  Holy  Alliance.  Comp.  § 47. 

1818,  Autumn.  Congress  at  Ai.x-la-Chapelle,  of  the  four  allies  and 
France.  Comp.  § 47.  (Martens,  “ Nouv.  Rec.,”  iv.,  549-566.)  By  an 
agreement  dated  October  9,  the  troops  of  the  allies  are  to  evacuate  France 
on  or  before  the  last  day  of  November,  and  to  give  up  the  forts,  as  they 
were  when  the  occupation  began.  Some  of  the  indemnity,  agreed  to  in 
1815  and  still  due,  is  remitted.  France  joins  the  holy  alliance.  For  the 
protocol  of  November  21,  comp.  § 98. 

1820,  October  28,  and  onward.  Congress  of  Troppau,  afterwards  re* 
moved  to  Laybach,  § 47. 


APPENDIX  11. 


477 


1822,  October.  Congress  of  Verona,  § 47. 

1826,  October  7.  Convention  of  Ackerman,  between  Russia  and  Tur- 
key. Ill  general  a restatement  of  the  Peace  of  Bucharest  (1812),  confirm- 
ing the  privileges  of  Servia,  and  restoring  the  mode  of  electing  the  hospo- 
dars  of  Moldavia  and  AAmllachia  by  the  Boyars  or  nobles  belong  to  the 
Divan  or  Council  of  each  principality.  Each  hospodar  was  to  hold  his 
office,  if  accepted  by  the  Sultan,  for  seven  years,  and  might  be  rechosen 
for  another  such  term,  if  neither  the  court  of  Turkey  nor  that  of  Russia, 
nor  the  principality,  had  any  grave  complaint  against  him.  A certain  con- 
trol, also,  over  the  power  of  the  Sultan  to  dismiss  them  from  office  is  ac- 
quired by  Russia.  (Martens,  “ N.  R.,”  vi.,  1053  et  seq.,  esp.  the  separate  acts.) 

1827,  July  6.  Treaty  of  London,  between  Great  Britain  and  Russia,  to 
which  France  afterwards  acceded.  (Martens,  u.  s.,  vii.,  282  and  463.) 
These  powers  offer  their  mediation  to  Turkey  on  behalf  of  Greece,  which 
shall  be,  they  propose,  a vassal  state  under  the  Sultan,  like  the  Danubian 
principalities.  On  the  20th  of  October  the  Turkish  fleet  was  annihilated 
at  Navarino,  and  in  1828  the  Morea  was  cleared  of  the  troops  of  Ibra- 
ham  Paclia.  The  boundaries  of  liberated  Greece  were  thus  enlarged. 

1828,  February  22.  Treaty  between  Russia  and  Persia  signed  at  Tourk- 
mantcha'i,  by  which  Persia  ceded  the  khanats  of  Erivan  and  Nakhitshevan, 
promised  an  indemnity  of  twenty  millions  of  silver  roubles,  and  agreed,  as 
in  the  treaty  ratified  at  Tiflis,  September  15,  1814,  that  no  ships  of  war, 
except  Russian,  should  navigate  the  Caspian;  which,  however,  remained 
free  to  merchant  vessels  of  both  nations.  (Martens,  u.  s.,  vii.,  564.)  By 
this  treaty  of  Tiflis,  Persia  gave  up  to  Russia  seven  khanats  south  of  the 
Caucasus,  of  which  the  Russians  were  actual  masters,  and  renounced  all 
claim  to  Daghestan,  Georgia,  Imeritia,  Mingrelia,  Abchasia,  etc.  (ilar- 
tens,  u.  s.,  iv.,  88.) 

1829,  September  14.  Treaty  of  Adrianople  between  Russia  and  Tur- 
key. (Martens,  u.  s.,  viii.,  143.)  Russia  restores  her  conquests.  The 
Prulh  to  bound  the  two  countries  as  heretofore  to  the  Danube,  and  the 
Danube  to  the  Black  Sea,  but  by  the  St.  George  or  southern  mouth,  and 
in  such  sort  that  the  islands  in  the  river  shall  be  Russian  territory.  The 
boundaries  in  the  east  are  so  drawn  that  a part  of  Turkish  Armenia,  with 
the  city  of  Akhalzik  and  the  fortress  of  Akhalkalaki,  passes  under  Russian 
sovereignty.  Turkey  also  concedes  that  the  sovereignty  of  Russia  extends 
over  Georgia,  Imeritia,  Mingrelia,  Gouriel,  and  other  Caucasian  countries. 
Passage  is  allowed  through  the  Dardanelles  and  Bosphorus,  to  Russian  mer- 
chant ships,  or,  in  other  words,  the  Black  Sea  is  opened  to  vessels  of  na- 
tions at  peace  with  Turkey,  and  Russia  has  the  right  of  navigating  the 
Danube.  The  prior  agreements  with  regard  to  the  Danubian  principalities 
are  confirmed,  and  the  hospodars  are  to  be  appointed  for  life,  being  re- 
movable for  crime  only.  Russia  had  now  by  treaty  acquired  a more  com- 
plete right  to  interfere  in  the  political  affairs  of  the  principalities.  Comp. 


478 


APPENDIX  II. 


tlic  special  treaty  relating  to  the  principialities,  at  the  end  of  this  treaty. 
(IMartens,  n.  s.,  p.  l.")5.) 

1831,  November  15.  Treaty  for  the  definitive  separation  of  Belgium 
from  Holland,  signed  at  London  between  the  five  powers  on  the  one  part, 
and  Belgium  on  the  other.  Comp.  §§  50,  1G3.  (Martens,  n.  s. , xi.,  350.) 

183'2,  May  7.  Convention  of  London,  between  France,  England,  and 
Russia  on  the  one  part,  and  Bavaria  on  the  other.  (Martens,  n.  s.,  x., 
550.)  The  crown  of  Greece,  now  made  a king<lom,  is  offered,  with  the  au- 
thorization of  the  Greek  nation,  to  the  King  of  Bavaria,  to  he  worn  by  his 
second  son,  Frederic  Otho,  and  accepted.  The  limits  of  the  kingdom  are 
to  be  fixed  by  treaty  with  Turkey,  according  to  a protocol  of  September 
2G,  1831.  A loan  to  the  King  of  Greece  is  guaranteed  by  Russia,  and, 
if  the  consent  of  the  Chambers  and  of  the  Parliament  can  be  obtained,  by 
France  and  England. 

1833,  July  8.  Convention  of  Unkiar-Skclessi,  between  Russia  and  Tur- 
key, after  the  victories  of  Ibrahim  Pacha  in  Syria  and  Asia  IMinor,  and 
the  Peace  of  Kutaiah  between  him  and  Turkey,  May  G,  1832.  The  two 
p.arties  form  an  alliance,  agreeing  to  aid  one  another  in  case  of  attack, 
when  such  aid  is  invoked.  In  a secret  article  it  is  added  that  Russia  ex- 
empts Turkey  from  rendering  such  aid  on  condition  that  she  closes  the 
Dardanelles  against  foreign  vessels  of  war.  (Martens,  u.  s.,  xi.,  G55.)  In 
a protest  of  France  against  this  treaty,  as  likely  to  give  rise  to  an  armed 
intervention  of  Russia  in  the  internal  affairs  of  Turkey,  it  is  said  that,  if 
circumstances  demand,  France  shall  act  as  if  no  such  treaty  existed.  (Mar- 
tens, u.  s.,  G59.)  The  engagements  contemplated  in  this  convention  would 
have  gone  far  towards  establishing  a permanent  protectorate  of  Russia  over 
Turkey.  Comp,  what  Dr.  Wheaton  says  in  his  “ History  part  4,  §§  29 
30,  of  this  treaty  and  those  of  Ackerman  and  Adrianople. 

1840,  July  15.  Convention  called  the  Quadruple  Treaty  of  London,  be- 
tween Great  Britain,  Austria,  Prussia,  and  Russia  on  one  part,  and  the 
Ottoman  Porte  on  the  other,  for  the  pacification  of  the  Levant.  The 
convention  grew  out  of  an  appeal  from  the  Sultan  for  aid  ir\  the  dangers 
which  threatened  his  Empire  from  his  rebellious  vassal,  Mehemct-Ali, 
Pacha  of  Egypt,  then  in  Syria,  and  threatening  to  lead  an  army  towards 
Constantinople.  It  was  made  known  by  the  Sultan  on  what  conditions  he 
would  come  to  terms  with  the  Pacha.  The  latter,  if  he  gave  up  his  hostile 
designs  within  a certain  number  of  days,  should  have  the  Pachalik  of 
Egypt  for  himself  and  his  descendants  in  the  direct  line  and  the  title  of 
Pacha  of  Acre,  also  the  fortress  of  St.  .lean  d’Aci’c  and  the  government 
of  the  southern  part  of  Syria.  If  he  delayed  for  a longer  time  the  offer  of 
Syria  should  be  withdrawn.  He  refused  all  offers,  was  deprived  of  his 
Pachalik  and  driven  out  of  the  territory  he  had  invaded;  then,  on  submis- 
sion, was  reinstated  in  his  Egyptian  government,  with  the  right  of  trans- 
mitting it  to  his  direct  descendants.  The  four  powers  agreed  to  furnish 


APPENDIX  II. 


479 


aid  by  land  and  sea,  according  to  tlio  means  which  they  should  each  find 
within  their  ability.  Tlie  Sultan  gave  it  to  be  understood  that  if  the 
Straits  of  the  Dardanelles  and  the  Bosphorus,  with  the  capital  of  the  Em- 
pire, should  be  placed  under  the  safeguard’of  the  contracting  powers,  it 
should  be  regarded  as  an  exceptional  measure,  adopted  at  the  express  re- 
quest of  the  Sultan,  and  should  not  do  away  with  the  ancient  rule  of  pro- 
hibiting vessels  of  war  of  foreign  powers  from  entering  theStraits.  On 
their  part  the  four  powers  agreed  to  respect  the  rule. 

In  1841,  another  convention  concluded  between  the  same  powers  (with 
the  addition  of  France)  and  the  Porte  confirmed  the  principle  of  the  closure 
of  the  Straits;  the  Sultan  reserving  the  right  of  allowing  small  puljlic  ves- 
sels, under  flag  of  war,  and  employed  in  the  public  service  of  friendly  pow- 
ers, to  pass  through  the  Straits  if  provided  with  a firman.  lie  also  declared 
his  intention  of  presenting  to  all  powers  with  whom  he  was  on  terms  of 
friendship,  this  convention,  and  asking  for  their  accession.  The  five 
powers  invited  him  to  make  this  declaration,  and  declared  their  unanimous 
intention  of  conforming  to  this  old  rule  of  the  Ottoman  Empire. 

It  thus  became  a part  of  the  written  public  law  of  Europe.  (Jlartcns, 
“ Xouv.  Rec.  Gen.,”  i.,  15G-207,  ii.,  r2G-130.  Comp.  Wheaton,  “ Hist.,” 
§§  32,  33.) 

1842,  August  9.  Treaty  of  Washington,  for  adjustment  of  the  boun- 
dary between  the  United  States  and  the  British  possessions  on  the.  north- 
east. For  the  rules  of  extradition  then  made,  comp.  § 78.  For  the  dis- 
cussions on  the  right  of  search,  comp.  §§  218,  219.  For  the  arrange- 
ments to  suf>pross  the  slave-trade,  comp.  § 218.  (Martens,  “Uouv.  Ecc. 
Gen.,”  continuing  Martens,  “Xouv.  Rec.,”  iii.,  45G.) 

1844,  November  28.  Treaty  between  the  Dukes  of  Tuscany,  Lucca, 
and  jModena,  in  view  of  the  death  of  the  Empress  Maria  Louisa,  Duchess 
of  Parma.  This  event  took  place  December  18,  1847,  when  the  Duke  of 
Lucea  would  become  Duke  of  Parma,  Piacenza,  and  Guastalla,  and  Lucca 
woidd  become  Tuscan.  (Sec  Congress  of  A’'ienna,  No.  12.)  The  Duke 
of  Lucca  (future  Duke  of  Parma)  agreed  to  cede  to  Modena,  Guastalla  and 
the  Parmesan  territory  on  the  right  bank  of  the  Enza.  Modena  renounces 
to  Tuscany  the  Vicariats  of  Barga  and  Pietra  Santa  (Act  of  Congress  of 
Vienna,  Art.  CII.)  — which  were  to  become  Modenese  when  Lucca  should 
become  Tuscan  — and  to  Parma  the  districts  of  Bazzano  and  Scurano  on 
the  left  bank  of  the  Enza.  Tuscany  cedes  to  Parma  its  possessions  in  the 
Lunigiana,  Pontremole,  Bagnone,  and  their  dependencies.  These  arrange- 
ments rounded  off  the  duchies,  and  did  away  with  enclaves.  Austria  and 
Sardinia — whose  rights  of  reversion  were  affected,  that  of  Austria  to 
Parma  and  Guastalla,  that  of  Sardinia  to  Piacenza,  both  derived  from  the 
Treaty  of  Aix-la-Chapelle  — concurred,  and  modified  their  rights  in  such 
sort  that  the  reversion  of  Austria  was  made  to  apply  to  the  new  Parmesan 
teiritoiy  in  the  Lunigiana,  and  was  passed  over  to  Sardinia  by  way  of  in- 


480 


APPENDIX  II. 


(leninity  for  the  loss  of  the  town  of  Piacenza,  which,  by  a special  article  of 
May  20,  1815,  concluded  at  Vienna,  was  to  become  Austrian  whenever  the 
Duchy  of  the  same  name  should  revert  to  Sardinia.  (Martens,  “N.  B,.  G.,’' 
XV.,  1-42.)  — In  the  spring  of  1860  these  duchies,  with  Romagna,  by  a rev- 
olutionary action  and  the  consent  of  the  people,  were  annexed  to  the  King- 
dom of  Sardinia. 

1848,  February  2.  Treaty  of  Guadalupe-Hidalgo,  by  which  Texas,  New 
Me.xico,  and  Upper  California  was  ceded  to  the  United  States,  which 
agreed  to  surrender  all  other  conquests,  to  pay  Mexico  fifteen  millions  of 
dollars,  and  to  assume  all  claims  of  its  citizens  against  Mexico,  decided  or 
undecided,  arising  before  the  signature  of  the  treaty.  (Murhard,  xiv.,  7.) 
Article  XXII.  of  this  treaty  illustrates  § 160. 

1848.  Difficulties  in  Schleswig-Holstein,  Denmark,  and  Germany,  the 
subject  of  a number  of  treaties.  See  under  1864. 

1856,  March  30.  Treaty  of  Paris  after  the  Crimean  War,  between  Aus- 
tria, France,  Great  Britain,  Russia,  Sardinia,  and  the  Ottoman  Porte,  Prus- 
sia also  being  invited  to  participate.  (Martens,  “ N.  R.  G.,”  xv.,  770.)  By 
this  treaty  (1.)  The  Black  Sea  is  neutralized  and  opened  to  the  commerce 
of  all  nations,  but  interdicted  to  flags  of  war,  excepting  that  a certain  force 
can  be  kept  on  foot  for  revenue  purposes  by  Turkey  and  Russia,  who 
pledge  themselves  to  maintain  no  naval  arsenals  on  its  coasts,  § 61.  In  ac- 
cordance with  this,  the  old  Turkish  principle  is  to  be  maintained  of  ad- 
mitting no  vessels  of  war  into  the  Dardanelles  and  the  Bosphorus,  the 
only  exceptions  being  those  of  light  vessels  in  the  service  of  the  legations 
of  friendly  powers,  and  of  the  powers  who  have  a right  under  the  treaty 
to  station  certain  vessels  at  the  mouths  of  the  Danube.  (Articles  XI.- 

XIV. )  (2.)  The  Danube  is  thrown  open  to  commerce,  § 62.  (Articles 

XV. -XIX.)  (3.)  The  limits  of  Bessarabia  are  somewhat  altered,  with 
the  intention  of  taking  away  from  Russia  the  command  of  the  mouths  of 
the  Danube,  and  the  tract  thus  ceded  by  Russia  is  added  to  Moldavia. 
(Articles  XX. -XXVI.)  The  places  taken  in  the  war  from  Russia  are 
restored.  (Article  IV.)  (4.)  Moldavia  and  Wallachia,  as  states  under  the 
suzerainty  of  Turkey,  are  confirmed  in  their  privileges  by  the  Sublime 
Porte,  and  guaranteed  in  them  by  the  contracting  powers;  but  no  exclusive 
j^rotection  over  them  can  be  exercised  by  any  of  the  guaranteeing  states, 
nor  any  separate  right  admitted  of  interfering  in  their  internal  affairs. 
They  are  to  have  an  independent  national  administration,  liberty  of  wor- 
shij),  legislation,  and  commerce,  an  armed  national  force,  and  a revision  of 
their  laws,  made  under  a joint  commission  of  all  the  contracting  parties. 
A new  organization  of  these  principalities  shall  be  arranged  by  a conven- 
tion at  Paris  of  the  treaty-making  pov/ers,  and  a hatti  tclieriff,  conformed 
to  the  decisions  of  that  convention,  shall  be  the  instrument  under  which 
their  organization  is  to  j)rocced.  They  are  allov/cd,  in  concert  with  the 
Porte,  to  adopt  measures  against  foreign  aggression.  If  internal  disorders 


APPENDIX  II. 


481 


should  break  out  in  them,  the  Porte  shall  have  an  understanding  with  the 
other  parties  to  the  treaty  concerning  measures  to  be  taken  for  the  pur- 
pose of  maintaining  or  establishing  legal  order,  but  no  armed  intervention 
can  take  place  without  the  previous  accord  of  the  aforesaid  powers.  (Ar- 
ticles XXI.-XXVII.)  For  the  convention,  organizing  the  principalities, 
which  was  signed  at  Paris,  August  19,  1858,  see  Martens,  N.  R.  G.,”  xvi., 
2,  50.  (5.)  Servia,  with  its  privileges,  is  placed  under  the  same  guaranty. 
The  Sultan’s  right  of  having  garrisons  there  is  to  remain  as  it  had  been. 
(6.)  The  Sultan  is  invited  to  participate  in  the  European  advantages  of 
public  law  and  concerted  action,  and  is  secured  in  the  independence  and 
integrity  of  his  Empire.  The  firman  of  February  18,  185G,  placing  all 
Christian  sects  in  Turkey  on  .a  level  with  Mohammedans,  in  respect  to  life, 
property,  religion,  etc.,  is  acknowledged  by  the  other  powers,  who,  how- 
ever, disclaim  all  right  to  interfere  between  the  Sultan  and  his  subjects,  or 
in  the  internal  administration  of  his  kingdom.  (Articles  VII.-IX.)  The 
six  Christian  powers  engage  to  respect  each  for  his  part,  the  independence 
and  territorial  integrity  of  the  Ottoman  Empire;  they  guarantee  in  common 
the  strict  observation  of  this  engagement,  and  will  consider  every  act  of  a 
nature  such  as  to  oppose  it  as  a question  of  general  interest.  (Article 
VII.)  They  also  engage  to  endeavor  to  prevent  quarrels  between  the 
Porte  and  one  or  more  of  the  signatory  powers.  (Article  VIII.)  A spe- 
cial treaty  concerning  the  Straits  was  made  between  Russia  and  Turkey. 

By  a declaration  of  April  IG,  certain  important  rules  of  maritime  law  are 
adopted  by  the  parties  to  this  peace.  See  §§  128,  190.  (Martens,  u.  s., 
XV.,  791). — Three  powers,  Austria,  France,  and  Great  Britain,  unite  in 
a special  guaranty  of  the  independence  and  integrity  of  the  Ottoman  Em- 
pire. All  infractions  of  the  treaty  in  that  direction  will  ho  considered  as 
casus  helli.  (Ibid.,  790.) 

Before  1876,  when  war  broke  out  again  between  Russia  and  Turkey, 
several  new  arrangements  occurred  under  the  stipulations  of  the  treaty  of 
Paris.  We  give  a brief  statement  of  those  referring  to  the  Danubian  prin- 
cipalities and  the  Black  Sea.  (1.)  A new  organization  of  the  principalities 
was  effected  at  Paris,  August  19,  1858,  the  seven  powers  concurring  (“  X. 
R.  G.,”  xvi.,  2,  50).  They  are  to  remain  autonomous  under  Turkey  as 
suzerain,  with  the  privileges  confirmed  by  different  instruments,  especially 
by  the  hatti  scherif  of  1834,  and  guaranteed  by  the  six  powers.  The  gov- 
ernment is  to  be  in  (he  hands  of  hospodars  elected  for  life  by  the  assem- 
bly, none  being  elected  except  persons  thirty-five  years  old,  sons  of  parents 
born  in  one  of  the  principalities.  The  assembly  is  elected  for  seven  years 
under  the  presidence  of  the  metropolitan,  who,  with  the  bishops  of  dio- 
ceses, belong  c.x  officio  to  the  body.  The  qualifications  of  electors  and 
representatives  are  determined  by  the  signatory  powers.  A Central  Com- 
mission of  sixteen,  taken  eight  from  each  principality,  four  chosen  by  each 
hospodar,  and  four  by  each  assembly*  are  to  have  the  office  of  watching 
31 


482 


APPENDIX  II. 


over  the  instrument  of  government,  and  of  revising,  codifying,  and  prepar- 
ing laws  of  common  intciest  to  both  princij)alilies. 

The  principalities  bad  wished  to  form  a closer  union,  and  elect  a foreign 
prince,  both  of  which  were  prohibited  by  the  organic  law  made  for  them 
at  Paris  in  1858. i In  1859  the  assemblies  of  the  two  princi|)alities  elected 
Prince  Conza;  a protocol  of  September  G,  1859,  gave  validity  to  this 
double  nomination,  and  by  a firman  of  December  4,  18G1,  the  Porte  in  con- 
cert with  the  guaranteeing  powers  allowed  this  infraction  of  the  basis  of 
government  made  in  1858,  until  Couza’s 'government  should  end.  Couza’s 
government  fell  by  revolution,  and  a provisory  government  was  established 
in  the  spring  of  18GG;  Prince  Charles  of  Hohenzollern  being  put  for- 
ward as  his  successor.  The  seven  powers  met  by  their  ambassadors,  at 
Paris,  in  18GG,  and  the  upshot  was  to  accept  the  state  of  things  forced  on 
them  by  the  revolutionists  in  the  principalities.  The  consent  of  Turkey 
was  expressed  in  a firman,  dated  October  23,  18GG,  making  Prince  Charles 
Prince  of  the  United  Piincipalities.  He  is  made  Prince  by  hereditary 
title,  which  is  to  pass  in  direct  line,  or  if  that  shall  run  out,  the  rank  will 
be  conferred  on  the  eldest  of  his  descendants  by  an  Imperial  firman.  He 
engages  to  respect  the  Sultan’s  rights,  to  confer  no  order  or  decoration,  to 
increase  the  tribute  already  paid,  keep  up  an  army  not  to  exceed  30,000 
troops,  not  to  allow  the  territory  to  become  a rallying  point  for  disturbers 
of  the  peace,  to  observe  treaties  and  conventions  between  the  Sultan  ami 
the  other  jiowcrs  so  long  as  they  violate  no  rights  of  the  United  Princi- 
palities, and  to  conclude  no  treaty  directly  with  foreign  jiowers. 

(2.)  Modifications  of  the  rule  neutralizing  the  Black  Sea,  agreed  to  at 
London,  March  13,  1871,  by  the  powers  participating  in  the  Treaty  of 
185G.  In  October,  1870  — soon  after  the  fall  of  the  second  Empire — the 
Russian  government  declared  to  the  other  signatory  powers,  that  the  Em- 
peror could  no  longer  hold  himself  to  be  bound  by  the  restrictions  of  1856, 
on  his  rights  of  sovereignty  in  the  Black  Sea,  nor  by  the  special  convention 
then  made  with  Turkey,  which  determined  the  number  and  size  of  the 
vessels  whieh  these  two  riparian  powers  allowed  each  other  to  maintain  in 
these  waters.  The  reasons  brought  forward  for  this  step  were  so  frivolous, 
that  one  wonders  at  the  want  of  shame  with  which  they  were  publicly 
avowed.  They  were,  (1.)  A trifling  inconsistency  between  the  main 
Treaty  of  185G  and  (he  Convention  of  the  Straits  attached  to  it.  (2.)  That 
the  treaty  had  been  violated  by  the  great  powers  in  its  letter  and  spirit, 
by  their  acquieseence  in  the  revolutionary  unio'n  of  the  Danubian  princi- 
palities. (3.)  That  the  Straits  had  been  opened'  to  foreign  vessels  of  war 
against  the  terms  of  the  treaty.  (4.)  That  naval  warfare  had  been  altered 
by  the  use  of  iron-clads,  which  exposed  the  Russian  ports  in  the  sea  to 
sudden  attacks  of  enem.ies  forcing  their  way  through  the  Straits.  It  must 
be  admitted  that  the  stipu'ations  of  1856  were  galling  and  humiliating  to 
1 See  for  example  Articles  vi.,  vii.,  N.  R.  G.,  xvi.  2,  50  et  seg. 


APPENDIX  II. 


483 


Russia;  probably,  also,  the  opinion  of  Europe  went  with  the  Emperor  in 
his  (leelaralions. 

A Conference,  held  at  London  in  Janiiarv,  1871,  to  consider  this  decla- 
ration resulted  in  annulling  Articles  XL,  XIII.,  XIV.,  of  the  Treaty  of 
Paris,  together  with  the  convention  concerning  the  Straits  between  Turkey 
and  Russia.^  The  following  Article  was  put  in  their  place:  “ The  prin- 
ciple of  the  closure  of  the  Straits  of  the  Dardanelles  and  of  the  Bos])horus 
established  by  the  special  convention  of  March  30,  1856,  is  maintained,  with 
the  right,  on  the  part  of  hlis  Imperial  Majesty  the  Sultan,  of  opening  said 
Straits  in  time  of  peace  to  ships  of  war  of  friendly  and  allied  powers,  in 
case  the  Sublime  Porte  should  find  it  necessary  in  order  to  secure  the 
Treaty  of  Paris  of  March  30,  1856.”  A convention  between  Russia  and 
Turkey  abrogating  the  Convention  of  the  Straits  of  the  same  date,  ac- 
companies this  treaty. 

lluis  Russia  has  recovered  the  national  right  of  maintaining  her  fleets 
of  whatever  size  in  the  Black  Sea,  and  Turkev  can  lawfully  open  in  peace 
the  Straits  to  her  friends  who  are  enemies  of  Russia,  in  order  to  observe 
the  treaty  and  protect  herself  against  Russia. 

1858.  The  treaties  of  this  year,  opening  China  to  several  of  the  Christian 
powers,  are  remai'kable,  as  bringing  that  country  in  a degree  within  the 
sphere  of  the  law  of  nations.  In  the  French  treaty  of  June  27,  it  is  said 
that  the  diplomatic  agents  shall  enjoy,  where  they  reside,  the  privileges  and 
immunities  granted  to  them  by  the  law  of  nations  ; that  is  to  say,  their  j)er- 
sons,  famil}',  house,  and  correspondence  shall  be  inviolable,  etc.  Consuls 
or  consular  agents  may  be  appointed  for  certain  sea  and  river  ports.  The 
right  of  building  houses,  churches,  schools,  etc.,  in  the  open  ports  is  ad- 
mitted. Frenchmen  may  resort  to  places  in  the  interior  and  jiorts  not  open 
to  foreign  commerce,  when  armed  with  passports  given  by  French  dii)lo- 
matic  agents  and  consuls.  IMembers  of  all  Christian  communions  shall  have 
freedom  of  person  and  worship,  and  missionaries  passing  into  the  interior, 
provided  with  passports  as  above,  shall  be  protected.  Xo  obstacle  shall  be 
put  in  the  way  of  any  Chinese  embracing  Christianity.  (Ibid.,  xvii.,  i.,  2.)^ 

1859,  July  11.  Preliminaries  of  peace  concluded  at  Villafranca  between 
Austria,  France,  and  Sardinia,  followed  by  a definitive  peace  signed  at  Zu- 
rich, Xovember  10  of  the  same  year.  (Ibid.,  xvi.,  2,  516).  The  treaties 
are  three  in  number,  two  between  Austria  and  each  of  the  other  parties, 
and  one  in  which  all  three  are  concerned.  Austria  cedes  to  France,  and 

1 At  the  end  of  the  first  meeting  of  the  representatives,  it  was  voted  (in  refer- 
ence, of  coiir.se,  to  the  course  taken  by  the  Czar)  that  no  power  can  release  itself 
from  tlie  engagements  of  a treaty,  nor  modifv  its  sti|inlations,  except  after  the 
assent  of  the  otlier  contracting  parties  through  an  amicable  understanding.  The 
protocol  may  be  found  in  the  Nonv.  Rrc.  Gen.,  xviii.,  p.  278. 

2 Quite  recently  we  learn  tliat  a Chinese  translation  of  Dr.  Wheaton’s  A'fe- 
ments  is  in  preparation.  (1864.) 


484 


APPENDIX  II. 


France  transfers  to  Sardinia,  nearly  all  of  Lombardy.  The  boundary  line 
of  the  ceded  territory  runs  from  the  southern  limit  of  Tyrol  on  the  Lago 
di  Garda,  through  the  middle  of  that  lake,  to  the  vicinity  of  the  fortress 
of  Peschiera,  until  it  strikes  the  circumference  of  a zone  made  by  a radius 
of  3,500  meters  plus  the  distance  from  the  centre  of  the  fort  to  the  outer- 
most part  of  the  glacis;  thence  along  that  circumference  to  where  it  strikes 
the  Mincio;  thence  along  the  main  channel  of  the  Mincio  to  Le  Grazie, 
and  thence  in  a direct  line  to  the  Po;  thence  along  the  main  channel  of  the 
Po  to  Luzzara,  where  the  former  boundary  line  of  Austrian  and  Sardinian 
territory  comes  to  the  river.  It  is  also  agreed  that  Austria  shall  receive 
from  France  a payment  of  forty  millions  of  florins,  being  a portion  of  the 
national  loan  of  1854,  in  return  for  which  Sardinia  shall  pay  France  one 
liTindred  million  francs,  in  five  per  cent,  stock,  besides  sixty  millions  to- 
ward the  cost  of  the  war.  The  new  government  shall  assume  three  fifths 
of  the  debt  of  the  Lombardo- Venetian  Monte,  or  bank  for  loans.  In  the 
treaty  between  France  and  Austria  the  two  parties  promise  to  favor  an 
Italian  Confederation  under  the  Pope,  of  which,  when  established,  the 
Venetian  remnant  of  the  Austrian  dominions  in  Italy  shall  be  a member, 
although  still  remaining  subject  to  the  Austrian  crown.  In  the  same  treaty 
it  is  said  that  the  rights  of  the  dukes  of  Tuscany,  Modena,  and  Parma,  to 
their  dominions,  arc  reserved  as  being  outside  of  the  authority  of  the  con- 
tracting parties,  and  not  capable  of  being  changed  except  with  the  concur- 
rence of  the  powers  which  made  the  Treaty  of  Vienna  of  1815. 

As  a sequel  to  this  cession  of  Lombardy,  by  a treaty  signed  at  Turin, 
March  24,  1860,  Sardinia  cedes  Savoy  and  the  arrondissement  of  Nice  to 
France,  the  parts  of  Savoy  near  Switzerland  being  transferred  subject  to 
the  condition  of  neutrality  imposed  on  them  in  1815.  § 163.  (Martens, 

“ Nouv.  Rec.  Gen.,”  xvi.,  2,539.) — By  these  two  last  treaties  and  the 
subsequent  events  in  Italy,  the  arrangements  of  the  Congress  of  Vienna 
are  effectually  set  aside,  as  it  regards  one  important  part  of  Europe,  and 
the  control  then  given  to  Austria  over  Italian  affairs  is  lost. 

Other  acquisitions  made  by  the  kingdom  of  Sardinia  came  principally 
by  revolution,  armed  intervention,  and  popular  vote.  Tuscany,  Parma, 
Modena,  and  the  Roman  legations  were  annexed  after  a popular  vote  by  a 
decree  of  March,  1860.  Garibaldi’s  revolution  in  the  Two  Sicilies  was 
followed  by  the  occupation  of  Umbria  and  the  Marches,  and  by  a popular 
vote  in  the  same  year.  Gaeta  surrendered  in  February,  1861,  and  in  the 
same  year  the  kingdom  of  Italy  took  its  name.  Finally,  the  Ecclesiastical 
State  was  absorbed  in  the  kingdom  during  the  summer  of  1870,  armed 
occupation  and  popular  vote  here  also  going  together. 

1863,  July  13.  Treaty  relating  to  the  Throne  of  Greece,  between  Den- 
mark on  the  one  part,  France,  Great  Britain,  and  Russia  on  the  other,  as 
the  three  protecting  and  guaranteeing  powers  under  a convention  of  May 
7,  1832.  Otho,  the  King  of  Greece,  of  the  Bavarian  family,  had  been  ex- 


APPENDIX  II. 


485 


pelled  in  a revolution  in  tlie  autumn  of  1862.  After  some  negotiations^ 
the  crown  was  offered  to  a prince  of  Denmark  by  the  Assembly  of  Greece, 
under  advice  of  the  great  powers.  Great  Britain  meanwhile  proposed  to 
abandon  the  protectorate  of  the  Ionian  Islands,  in  view  of  their  union  with 
Greece,  if  the  powers  which  were  parties  to  the  treaty  of  November  5, 
1815,  would  give  their  consent,  and  if  Greece  should  remain  a monarchy. 
The  King  of  Denmark  came  into  the  treaty  on  behalf  of  a member  of  his 
family.  Its  principal  articles  were,  (1.)  That  the  King  of  Denmark,  on 
behalf  of  Prince  George,  son  of  Prince  Christian,  accepts  for  him  the 
hereditary  sovereignty  of  Greece,  offered  by  the  Assembly  in  the  name  of 
the  nation.  He  is  to  lake  the  title  of  George  I.,  and  Greece  is  to  form  an 
independent  constitutional  monarchy.  (2.)  The  Ionian  Islands  shall  be- 
come a part  of  Greece  whenever  the  Ionian  Parliament,  with  the  courts  of 
Fr.nnce,  Austria,  Russia,  and  Prussia,  shall  consent.  (3.)  The  crowns  of 
Denmark  and  Greece  shall  never  be  united  on  the  same  person.  (4.)  The 
lawful  successors  of  George  I.,  shall  profess  the  faith  of  the  Orthodox 
Oriental  Church.  (5.)  The  Government  of  the  Ionian  Islands  shall  be  ad- 
vised by  Great  Britain  to  add  ten  thousand  pounds  sterling  to  the  civil  list 
of  the  Greek  King,  and  the  three  great  powers  above  named  shall  each 
annually  give  up  four  thousand  pounds  sterling  of  the  interest  on  the  debt 
due  from  the  Greek  Government,  to  be  used  as  a personal  donation  to  the 
King,  besides  the  civil  list  established  by  the  law  of  the  State.  (Martens, 
“ Nouv.  Rec.  Ge'n.,”  xvii.,  2,  79,  “Annuaire  des  Deux  Mondes  ” for  1862, 
1863,  or  xii.,  999.) 

1864,  March  29.  Treaty  relative  to  the  union  of  the  Ionian  Islands  with 
Greece,  between  the  three  protecting  powers  (as  above)  and  Greece,  car- 
rying out  in  substance  an  arrangement  of  November  14,  1863,  to  which 
these  three  powers,  with  Austria,  were  parties.  (1.)  The  seven  Ionian 
Islands  — their  consent  being  given  through  their  Parliament,  and  Great 
Britain’s  abandonment  of  her  protectorate  having  been  accepted  — are  to 
form  a part  of  the  Greek  monarchy.  (2.)  The  Islands  of  Corfu  and  Paxo, 
with  their  dependencies,  shall  enjoy  perpetual  neutrality.  By  the  treaty 
of  November  14,  1863,  this  neutrality  extended  over  all  the  Ionian  Islands 
and  their  waters,  but  was  now  made  more  limited  at  the  request  of  the 
Greek  government.  (3.)  Existing  commercial  arrangements  are  to  re- 
main in  force,  subject  to  modifications  to  be  made  within  fifteen  years. 
(4.)  The  Established  Greek  Church  of  the  islands,  the  special  protection 
enjoyed  by  the  Roman  Catholic  Church,  liberty  of  worship,  civil  equality, 
are  to  remain  in  force,  according  to  the  present  Constitution  of  the  islands. 
(5.)  The  additions  to  the  civil  list  of  the  King  of  Greece,  advised  in  the 
treaty  of  July  13,  1863,  are  agreed  to  by  the  Legislative  Assembly  of  the 
Islands  and  by  the  three  powers.  (See  that  treaty,  under  No.  5.)  (6.)  By 
tlie  treaty  of  November  14,  1863,  the  fortresses  of  Corfu  and  its  depend- 
encies were  to  be  demolished  before  the  withdrawal  of  the  British  troops 


486 


APPENDIX  IL 


wliich  guarded  them.  Nothing  is  said  of  that  matter  in  this  treaty.  The 
(ji-eeks  desired  to  retain  tliem,  but  they  were  dismantled  as  far  as  possible.’ 
(?.)  The  three  courts  guarantee  the  condition  of  the  islands  as  portions 
of  an  independent  constitutional  monarchy.  (“  Annuaire,”  u.  s.  1000- 
1004). 

18G4.  Difficulties  regarding  Schleswig-Holstein,  from  1848  to  the  Peace 
of  Vienna,  October  30,  18G4.  To  understand  the  better  this  confused  series 
of  events,  we  may  premise,  (1)  that  Schleswig,  a Danish,  but,  except  in  the 
north,  German-speaking  duchy,  and  Holstein,  a duchy  pertaining  to  the 
Germanic  body  under  the  King  of  Denmark  (who  had  been  also,  since  1815, 
as  Duke  of  Lauenburg,  a member  of  the  Confederation),  had  formerly  joint 
Estates,  which,  however,  for  one  hundred  and  twenty  years  had  not  been 
called  together.  In  1831  the  King  of  Denmark  granted  them  estates  in  the 
shape  of  two  houses,  one  for  each  duchy,  with  no  power  of  final  action. 
(2.)  In  184G,  Christian  VIH.  of  Denmark,  whose  son  Frederic  VII.,  king 
from  1848,  was  childless,  issued  a patent  declaring  the  “royal  law”  of  suc- 
cession in  force  for  Schleswig,  Lauenburg,  and  part  of  Holstein;  and  ex- 
pressing the  intent  to  Indng  the  rest  of  Holstein  into  closer  union  with  the 
rest  of  the  kingdom.  This  Royal  Law  of  Frederic  HI.,  made  in  1GG5,  gave 
to  descendants  of  females  the  right  of  succession  on  the  extinction  of  the 
male  line.  (3.)  If  the  King  of  Denmark  encroached  on  the  rights  of  a 
Germanic  duchy,  the  act  could  be  brought  before  the  Diet,  and  a military 
execution  be  ordered,  if  judged  best.  One  or  more  Germanic  states,  acting 
through  a civil  commissioner,  and  a military  force  of  definite  size,  could  be 
charged  with  this  execution,  the  time  for  the  continuance  of  which  was  to 
be  limited.  (4.)  The  Duchies  of  Schleswig  and  Holstein  claimed  against 
Denmark  the  right  of  having  a voice  in  a new  constitution  binding  upon 
them,  the  right  of  a united  government,  the  right  of  not  being  consolidated 
with  the  Kingdom  of  Denmark,  and  that  of  following  their  old  laws  of  suc- 
cession in  the,  male  line  only.  (5.)  Denmark  was  struggling  for  closer  union 
of  the  component  part.s  of  the  state,  or  rather  consolidation  of  the  different 
territories  under  the  king.  The  duchies  were  German,  for  the  most  part, 
in  feeling.  At  the  same  time  the  craving  for  unity  in  Germany  was  becom- 
ing very  strong,  and  took  a democratic  direction.  (G.)  We  just  hint  at  the 
events  in  Germany  — at  the  revolutionary  year  of  1848,  with  the  “ Vbr- 
parlemcnt,”  the  “ Reichsparlemcnt,”  the  vain  attempt  to  establish  an  Em- 
pire under  the  King  of  Prussia,  the  reaction  and  substantial  return  to  the 
Federal  Constitution  of  1815.  (1848-1851.)  We  see  a continual  desire, 

especially  in  North  Germany,  for  greater  political  unity,  a jealousy  between 
Prussia  and  Austria,  a desire,  for  example,  on  the  part  of  the  latter  to  bring 
her  non-Germanic  States  into  the  Confederation,  with  the  ultimate  prob- 
ability of  a conflict  between  the  two  great  powers  in  regard  to  the  hegemony 
among  the  Germans.  There  is  manifest,  also,  a want  of  loy  alty  tow'ards 
the  constitution  on  the  part  especially  of  Prussia,  and  a disposition  to  alter 
or  destroy  it. 


APPENDIX  11. 


487 


In  1848,  Frederic  VIL,  of  Denmark,  on  succeeding  to  the  crown,  an- 
nounced a constitution,  under  which  the  kingdom  and  the  duchies  were  to 
have  common  estates.  (“  Nouv.  Rec.  Gen.,”  xi.,  492.)  The  dejmties  of 
the  estates  of  the  duchies  upon  this  petitioned  the  king  to  convoke  the  two 
estates,  for  the  purpose  of  deliberating  togctlier,  to  submit  to  these  estates 
the  project  of  a constitution  for  Schleswig-Holstein,  and  to  obtain  admis- 
sion for  Schleswig  into  the  German  Confederation.  The  king’s  answer  not 
being  satisfactory,  the  duchies  revolted,  and  set  up  a provisional  govern- 
ment (Ibid.,  496) ; the  German  Diet  decided  to  protect  the  right  of  union 
between  the  duchies;  the  King  of  Prussia  was  deputed  to  mediate,  and  se- 
cure from  Denmark  the  withdrawal  of  its  troops  from  Schleswig;  and  it  was 
decided  in  the  “ Vorparlement  ” that  the  affairs  of  Schleswig  were  within 
the  competence  of  Germany. 

August  26,  1848.  Convention  of  IMalmo.  Federal  troops  were  raised, 
and,  penetrating  into  the  duchies,  drove  out  the  Danes;  but  as  interference 
from  abroad  was  threatened,  the  Prussians  withdrew  their  forces,  and,  with 
the  authority  of  the  central  power,  made  this  armistice.  It  provided  that 
all  laws  applied  to  the  duchies  since  March,  1848,  should  be  held  null  and 
void  ; that  a new  government  emanating  from  the  parties  to  the  truce  — r 
Denmark  and  Prussia  — should  replace  the  provisory  government;  and  that 
the  troops  of  Schleswdg  siiould  be  separated  from  those  of  Holstein.  Lauen- 
burg  likewise,  during  the  armistice,  should  be  governed  by  commissioners, 
like  the  other  duchies.  The  armistice  was  to  last  seven  months.  (Ibid., 
546  et  seq.)  The  Estates  of  the  duchies  refused  to  accept  this  armistice. 
(Ibid.,  561.)  The  principles  of  Prussia  in  regard  to  the  duchies  were,  about 
this  time  (Ibid.,  498),  that  they  were  inde[)endent  states,  and  states  closely 
united  together,  and  that  the  male  line  reigned  in  them.  The  fundamental 
law  of  the  duchies,  as  projected  under  the  provisory  government,  may  be 
found  pp.  531-546,  of  the  same  volume.  They  form  “ a united,  inseparable, 
and  indivisible  state;  every  change  in  the  limits  of  territory  implies  a 
change  of  the  constitution  ; ” and  “ they  form  a part  of  the  Confederation 
of  the  Ge  rman  states.” 

July  10,  1849.  Armistice  of  Berlin  for  six  months,  between  Prussia  and 
Denmark,  in  which  neither  the  duchies  nor  the  Confederation  joined.  The 
convention  of  Mahno  was  very  distasteful  at  Frankfort.  On  its  expiration 
German  troops  were  sent  into  the  duchies  with  a stadtholder,  but  the  army 
of  the  revolted  duchies  suffered  a severe  defeat  from  the  Danes  at  Fred- 
ericia,  in  Jutland.  By  the  armistice  the  Prussian  army  was  to  evacuate 
Jutland;  a commission  of  three,  one  a Dane,  one  a Prussian,  and  one  an 
English  umpire,  were  to  manage  affairs  in  Schleswig;  and  no  troops  should 
be  allowed  in  the  duchies  except  those  of  the  contracting  parties,  with  a 
small  Swedish  force.  (Ibid.,  xiv.,  544.) 

Secret  articles  of  the  same  convention  provided  that,  in  case  the  duchies 
or  their  army  offered  armed  resistance  to  the  truce,  whether  acting  alone  or 


488 


APPENDIX  II. 


aided  by  one  or  the  other  of  the  German  contingents,  Denmark  would  be 
free  to  use  all  means  of  force  at  its  command,  in  which  case  Prussia  prom- 
ised to  withdraw  its  troops,  and  any  officers  who  were  serving  in  the  army 
of  the  duchies.  (Ibiil.,  099-701.) 

A protocol  of  the  same  date,  made  with  the  concurrence  of  the  British 
Minister  at  Berlin,  gives,  among  the  preliminary  articles  of  a peace,  these: 
that  Schleswig  shall  have  a separate  Constitution,  for  law  and  internal  ad- 
ministration, from  Holstein,  its  politic.al  union  with  Denmark  being  left  in- 
tact; and  that  Holstein  shall  have  a representative  Constitution  as  soon  as 
possible.  The  parties  agree  to  demand  the  guaranty  of  the  great  powers 
for  the  strict  execution  of  a definitive  peace  in  regard  to  the  ducfiy  of 
Schleswig.  The  question  of  succession  in  Denmark  is  to  be  regulated  in 
concert  with  the  same  powers.  (Ibid.,  542,  543.) 

July  2,  1850.  Treaty  of  Peace  made  at  Berlin  between  the  King  of 
Prussia,  for  himself  and  for  the  Confederation,  and  the  King  of  Denmark; 
the  British  Minister  concurring  in  this  treaty  also.  (Ibid.,  xv.,  340.)  By 
this  act  no  great  progress  was  made  towards  a final  adjustment  of  the  ques- 
tion of  the  duchies.  The  King  of  Denmark  might  claim  the  intervention 
of  the  German  Confederation  for  the  support  of  his  legitimate  authority  in 
Holstein;  and,  if  intervention  were  withheld,  might  be  free  to  use  armed 
force.  Commissioners  were  to  be  appointed  to  fix  the  boundaries  of  the 
teri  itory  of  the  Danish  Kingdom  and  that  included  in  the  Confederation. 
The  parties  to  the  treaty  reserved  the  rights  they  had  before  the  war. 
This  was  accepted  by  the  states  of  the  Confederation,  and  ended  the  war 
betweejt  it  and  Denmark,  but  not  that  between  Denmark  and  the  duchies. 
The  King  of  Prussia,  under  the  same  date,  agreed  to  withdraw  all  Prussian 
troops  stationed  in  the  three  duchies,  and  to  put  no  obstacles  in  the  way  of 
military  measures  which,  after  the  evacuation,  should  be  taken  in  the  duchy 
of  Schleswig  by  Denmark.  (Ibid.,  343.) 

By  a convention  at  Olmutz,  November  29,  1850,  Austria  and  Prussia 
agreed  to  send  commissioners  into  Holstein  requiring  suspension  of  arms, 
and  making  threat  of  a military  execution  in  case  of  refusal.  An  army  of 
25,000  men,  of  each  of  these  nations,  was  to  be  sent  in  case  of  refusal. 
(Comp.  Ibid.,  348.)  But  the  rights  of  Holstein  and  its  relations  with 
Schleswig  were  to  be  on  the  basis  of  the  status  quo  ante  bellum.  The 
duchies  obeyed. 

Negotiations  in  1851  and  1852,  in  which  Austtia  and  Prussia  acted  for 
the  Confederation,  brought  Denmark  and  the  Confederation  to  an  under- 
standing in  reo-ard  to  the  relations  of  the  kingdom  to  the  duchies.  To  use 
nearly  the  words  of  the  editor  of  the  “ Nouv.  Rec.  Gen.,”  M.  Sammwer 
(vol.  XV.,  pp.  322,  and  onward)  : Denmark  engaged  (1)  not  to  incorporate 
the  duchy  of  Schleswig  in  the  kingdom  of  Denmark,  and  to  take  no  step 
tending  thereto.  (2.)  The  non-political  relations  uniting  Schleswig  and 
Holstein  shall  be  preserved.  (3.)  The  organization  of  the  monarchy  shall 


APPENDIX  II. 


489 


()e  such  that  no  part  shall  be  subordinate  to  another.  (4.)  Such  organiza- 
tion ^llllll  require  the  concurrence  of  the  duchies  of  Schleswig,  Holstein, 
and  Lauenburg,  and  of  the  Chambers  of  Denmark.  (5.)  Schleswig  and 
Holstein  shall  have  special  ministries  for  justice,  worshi[),  instruction,  in- 
terior administration,  domains  and  imposts,  commerce  and  industry.  (6.) 
Foreign  affairs,  finances,  the  army,  the  council  of  state,  shall  be  common  to 
the  two  duchies  and  the  kingdom.  (7.)  The  estates  of  Schleswig  and  Hol- 
stein shall  have  a decisive  voice  in  all  those  affairs  which  were  of  their  re- 
sort according  to  the  Constitution  of  1831 ; that  is,  in  all  laws  relating  to 
imposts,  rights  of  persons,  and  rights  of  property.  Hence  it  is  agreed  that  a 
common  representative  system  for  all  the  monarchy,  with  a decisive  voice, 
shall  not  be  constituted  to  the  prejudice  of  the  competence  of  the  separate 
assemblies.  (8.)  Danish  and  German  nationalities  shall  be  equally  pro- 
tected in  Schleswig. 

On  their  part  the  German  powers  agreed  to  place  the  ten-itories  occupied 
by  their  troops  under  the  authority  of  Denmark,  and  promised  to  sanction 
a law  of  succession  for  the  integrity  of  the  Danish  monarchy.  (Ibid.,  xv., 
366,  and  onward.)  These  arrangements  contained  new  difficulties  in  them- 
selves, and  were  not  fulfilled  with  entire  uprightness  by  Denmark. 

1853,  May  8.  Treaty  of  London,  sanctioning  a projected  succession  in 
Denmark.  The  king  and  his  uncle,  the  only  members  of  the  direct  male 
line,  had  no  children.  This  new  Pragmatic  Sanction,  to  which  Austria, 
France,  Great  Britain,  Prussia,  Russia,  Sweden,  and  Norwav,  with  Den- 
mark, were  parties,  provided  that,  on  the  extinction  of  the  direct  line  de- 
scended from  Frederick  HI., — in  whose  reign,  and  in  1665,  the  admissi- 
bility of  cognates  to  the  throne  became  a royal  law,  — Prince  Christian  of 
Schleswig-Holstcin-Sondersburg-Gliicksburg,  and  his  issue  in  the  male  line 
by  Louisa,  born  Princess  of  Hesse,  should  have  a right  to  the  throne,  and 
to  the  succession  in  all  the  states  actmdly  united  in  the  Danish  monarchy. 
The  contracting  parties  declare,  however,  that  the  existing  rights  and  obli- 
gations of  the  King  of  Denmark  and  the  German  Confederation,  as  estab- 
lished by  the  Federal  Act  of  1815,  and  the  existing  federal  law,  are  not 
altered  by  the  treaty.  To  this  treaty  other  sovereigns  were  invited  to  ac- 
cede, and  did  so  to  a great  extent,  but  several  of  the  powers  of  the  Ger- 
manic body  — Baden,  Bavaria,  Grand-ducal  Hesse,  the  Mecklenbnrgs,  Saxc- 
M’  eimar,  an<l  Saxony — refused  to  join  in  the  transaction,  chiefly  on  the 
ground  that,  as  the  matter  belonged  to  the  Confederation,  which  had  not 
considered  it,  they  could  not  take  an  independent  course.  (“  Nouv.  Hoc. 
Gen.,”  xvii.,  2,  313  et  seg.) 

The  next  years  did  not  put  an  end  to  the  troubles  between  Denmark  and 
the  duchies.  A Constitution  on  the  plan  of  provincial  estates  was  published 
for  Schleswig,  and  one  for  Holstein  in  1854,  and  the  common  Constitution 
was  put  into  operation  in  1855,  without  consulting  the  provincial  assemblies. 
Against  this  action  of  the  government  deputies  from  the  duchies  in  the 


490 


APPENDIX  II. 


Danish  geneval  assembly  protested  in  1856,  and  the  complaint  of  Holstein 
was  supported  by  the  two  great  German  powers.  The  Diet  of  Germany 
took  up  the  affair,  and,  after  much  negotiation,  in  1858,  the  King  of  Den- 
mark revoked  the  general  Constitution  as  far  as  it  related  to  the  two  Ger- 
man duchies  (Holstein  and  Jyauenburg),  as  well  as  portions  of  the  provin- 
cial Constitution  of  Holstein,  and  a certain  obnoxious  ordinance  concerning 
the  establishment  of  a common  ministry  of  the  interior.  A resolution  of  the 
Diet  of  Germany  in  February,  1861,  will  show  the  state  of  the  controversy 
at  that  time.  It  was  that  the  Danish  regulation  determining  the  quota  of 
Holstein  in  the  budget  for  1861-1862,  and  the  financial  law  of  July,  1860, 
were  illegal,  as  having  been  published  without  the  consent  of  the  provincial 
estates  of  Holstein.  Unless  satisfactory  concessions  should  be  made  within 
six  weeks,  the  Diet  should  proceed  to  a military  execution  in  Holstein. 
Denmark  offereil  to  make  that  duchy  an  autonomous  part  of  the  monarchy; 
but  this  did  not  satisfy  the  estates,  who  objected  to  the  law  of  succession, 
as  not  having  received  their  consent,  and  demanded  that  the  “ expenses  on 
account  of  the  military  obligations  imposed  by  the  German  Confederation 
should  be  charged  to  the  general  treasury  of  the  monarchy.”  The  decree 
of  execution  on  the  part  of  the  Diet  was  suspended. 

Schleswig  especially  now  came  into  the  foreground.  It  was  said  that  the 
relations  of  Schleswig  towards  Denmark,  having  been  fixed  (in  1851-1852) 
by  agreement  between  Austria  and  Prussia,  representing  the  Confederation 
and  Denmark,  could  not  be  altered  by  unilateral  arrangements.  On  the 
part  of  Denmark,  it  was  denied  that  those  conventions  tied  the  hands  of 
the  government  towards  Schleswig.  At  this  time  a proposition  was  made 
to  Denmark  by  England  to  this  effect:  that  all  the  demands  of  the  German 
Diet  for  Holstein  and  Lauenburg  should  be  complied  with;  that  Schleswig 
should  have  the  power  of  governing  itself  without  being  represented  in 
the  Danish  general  assembly  (the  Rigsraad);  that  a normal  budget  for 
the  kingdom  and  the  three  duchies  should  be  adopted ; and  that  extraordi- 
nary expenses  should  be  sanctioned  both  by  the  assembly  and  the  sepai'ate 
assemblies  or  estates  of  the  duchies.  To  this  advice  the  other  great  powers 
gave  their  sanction,  but  the  maintenance  of  a common  constitution  for  the 
kingdom  and  for  Schleswig  was  regarded  by  the  Danish  statesmen  as  a 
question  of  life  and  death  for  that  country. 

An  ordinance  of  March  30,  1863,  emanating  from  the  King  of  Denmark, 
complained  of  interference  on  the  part  of  the  German  Confederation,  and 
declared  that,  in  all  the  affairs  common  to  the  parts  of  the  monarchy,  the 
legislative  power  for  Holstein  would  be  exercised  by  the  king  and  the 
estates  of  the  duchy.  This  isolation  of  Holstein  was  complained  of  by 
Austi'ia  and  Prussia,  for  themselves  and  for  the  Confederation,  as  contrary 
to  the  arrangements  of  1851,  1852;  and  the  Diet  resolved,  July  9,  1863,  to 
advise  the  king  to  make  known  within  six  weeks  his  readiness  to  establish 
a general  constitution,  uniting  by  a similar  connection  the  three  duchies 


APPENDIX  II. 


491 


and  the  kingdom,  either  on  the  basis  of  the  arrangements  of  1851,  1852,  or 
on  that  of  a pi’oposition  made  by  the  British  Government,  September  24, 
1862.  This  resolution,  which  looked  towards  military  execution,  was  to  be 
communicated  to  the  king,  as  far  as  the  German  duchies  were  concerned, 
by  the  Diet’s  envoy,  and  as  far  as  Schleswig  was  concerned,  by  the  repre- 
sentatives of  Austria  and  Prussia  at  his  court.  It  was  replied,  that  a fed- 
eral execution  on  Holstein  for  the  purpose  of  forcing  the  king  to  a certain 
course  in  Schleswig  was  against  international  right.  Sweden  and  the  Brit- 
ish Government  enforced  the  same  view.  But  the  execution  was  decided 
upon,  and  was  put  into  the  hands  of  Austria  and  Prussia  with  Saxony  and 
Hanover.  (October,  1,  1863.)  Civil  commissioners,  with  a force  from  the 
two  last-mentioned  states,  backed  by  a superior  Austrian  and  Prussian 
force,  were  to  direct  the  measures  of  execution,  and  to  administer  the  af- 
fairs of  Holstein  and  Lauenbui-g. 

Such  was  the  state  of  things  when  Frederic  VII.  of  Denmark  died,  No- 
vember 13,  1863,  and  Christian  of  Gliicksburg  took  the  throne.  The  par- 
ties to  the  London  Treaty  of  May  8,  1852  (see  above),  “ recognized  as 
permanent  the  integrity  of  the  Danish  monarchy,”  but  “ the  reciprocal 
riohts  and  obligations  of  the  King  of  Denmark  and  of  the  German  Confed- 

o o o 

eration  were  not  altered  by  the  treaty.”  The  question  of  succession  in 
Schleswig-Holstein  now  became  a practical  one.  There  was  a cry  in  Ger- 
many for  the  revival  of  the  ancient  law  of  succession  in  the  male  line. 
Neither  the  Confederation  nor  the  duchies,  nor  all  the  pretendents  to  the 
succession,  had  acceded  to  the  treaty.  The  Prince  of  Augustenburg  gave 
out  word  that  he  would  assume  the  government  in  the  duchies  as  the  legit- 
imate ruler.  Austria  and  Prussia  declared  themselves  ready  to  observe  the 
London  Treaty,  if  the  arrangements  of  1851,  1852,  which  were  the  consid- 
eration for  which  they  joined  in  that  treaty,  were  carried  out.  The  com- 
plication was  increased  by  the  act  of  the  new  Danish  King,  who  swore  to 
observe  a new  Constitution,  just  before  adopted  by  the  Danish  Rigsraad, 
which  incorporated  Schleswig  into  the  kingdom,  properly  so-called.  This 
Constitution,  according  to  the  Prussian  statesman,  Bismarck,  should  be  de- 
clared by  Denmark  not  apjdicablo  to  Schleswig,  or  the  German  states 
would  hold  themselves  to  be  released  from  their  obligations  towards  Den- 
mark, especially  as  it  regarded  the  Treaty  of  Succession  of  London  of  1852. 
And  the  German  states  which  had  acceded  to  that  treaty  declared  them- 
selves free  from  its  obligations,  because  it  had  not  been  consented  to  by 
the  Diet,  and  because  Denmark  had  not  fulfilled  its  engagements  of  1851, 
1852. 

In  December,  1863,  a military  execution. was  set  on  foot.  Holstein  and 
Lauenburg  were  soon  occupied,  and  the  royal  authority  there  was  sus- 
pended. Early  in  1864  the  Prince  of  Augustenburg  was  proclaimed  in 
Schleswig-Holstein,  and  took  oath  to  support  a constitution  made  there  in 
1848.  Denmark  was  advised  by  the  great  powers  to  yield.  And  it  was 


492 


APPENDIX  II. 


given  to  be  understood  that,  in  case  of  a war  with  Germany,  she  could 
count  on  no  aid  from  France,  England,  or  Russia. 

About  the  same  time  Austria  and  Prussia  proposed  to  the  Diet  to  inter- 
vene in  the  affairs  of  Schleswig  on  international  grounds,  arising  out  of  its 
virtual  incorporation  into  Denmark  by  the  recently  proclaimed  Constitution. 
The  Diet  not  being  disposed  to  adopt  their  proposal,  these  two  govern- 
ments declaretl  themselves  bound  to  take  into  their  own  hands  the  defense 
of  the  rights  of  the  Confederation,  and  to  get  Schleswig  into  their  posses- 
sion as  a pledge  of  the  engagements  made  by  Denmark  in  1851,  1852. 
They  carried  out  this  purpose.  Their  armies  drove  the  Danes  out  of 
Schleswig,  entered  into  Jutland,  took  Fredcricia  by  storm  in  March,  and 
the  fortress  of  Duppel  in  April;  while  the  Danes,  superior  on  the  land, 
vexed  the  commerce  of  the  Germans  on  the  sea.' 

In  the  spring  of  18G4,  Avhile  the  war  was  in  progress,  conferences  were 
h(“ld  in  London  between  plenipotentiaries  of  Austria,  the  German  Confeder- 
ation, Denmark,  France,  Great  Britain,  Russia,  and  Sweden,  in  the  attempt 
to  arrange  a peace  between  Denmark  and  Germany.  The  protocols  of  the 
conferences,  the  first  of  which  occurred  April  20,  and  the  last  June  25,  are 
given  in  the  “ Nouv.  Rec.  Gen.,”  xvii.,  2,  347-470.  Various  attempts  to  har- 
monize the  views  of  the  parties  proved  abortive.  On  the  2Sth  of  May  the 
Austrian  representative  demanded  the  complete  separation  of  the  two 
duchies  from  Denmark,  and  their  union  as  one  state  under  the  hereditary 
Piince  of  Augustenburg.  Lord  Russell  proposed  to  separate  from  Den- 
mark Lauenburg,  Holstein,  and  that  part  of  Schleswig  which  lies  not  fur- 
ther to  the  north  than  the  mouth  of  the  Schlei  and  the  line  of  the  Danne- 
werke.  Tin;  public  debt  was  to  be  divided  equitably,  the  German  powers 
were  to  renounce  all  right  of  interference  in  Danish  affairs,  to  erect  no 
fortresses  and  to  build  no  ports  in  ceded  lands,  and  the  future  condition  of 
the  territory  was  not  to  be  settled  without  their  consent.  Denmark,  in  its 
weaknes.s,  was  ready  to  consent  to  this  arrangement.  This,  too,  failed  to 
satisfy  the  parties.  On  their  side  the  throe  great  powers  — France,  Russia, 
and  England  — might  have  saved  Denmark  by  intervention,  but  Russia 
had  not  been  disposed  to  take  this  step.  The  French  Emperor  now  de- 
clared that  he  did  not  think  Fi’ance  essentially  interested  in  insisting  on 
the  line  of  the  Schlei — having  probably  an  expectation  that,  by  letting 
Prussia  aggrandize  herself,  he  could  gain  a corresponding  advantage  for 
France.  England  could  not  well  interfere  alone.  Thus  Denmark  was  left 
to  her  weakness  and  her  obstinacy.  An  armistice,  made  amid  the  confer- 
ences, now  came  to  an  end  on  the  26th  of  June.  The  island  of  Alsen  was 
occupied  a day  or  two  after,  and  a landing  on  one  of  the  larger  Danish 
islands  was  thi-eatened.  The  Danish  King  now  gave  way,  an  ai  mistice  was 
granted  to  him  July  19,  and  conferences  were  held  at  Vienna  by  his  repre- 
sentatives with  those  of  Austria  and  Prussia. 

1864,  October  30.  Peace  of  Vienna  between  the  parties  just  mentioned 


APPENDIX  II. 


493 


The  preliminaries  had  been  settled  August  1.  The  King  of  Den- 
mark renounces  all  liis  lights  over  the  three  duchies  in  favor  of  the  Em- 
peror of  Austria  and  the  King  of  Prussia,  promising  to  consent  to  their 
arrangements.  A part  of  Jutland,  lying  within  Schleswig  and  to  the  south 
of  the  northern  boundary-line  of  the  district  of  Ribe,  is  ceded  by  the 
King  of  Denmark  in  order  to  be  incorporated  in  Schleswig,  and  an  equiva- 
lent portion  of  Schleswig  is  to  form  part  of  the  Kingdom  of  Denmark.  Ar- 
rangements are  made  for  the  payment  by  the  duchies  of  their  portion  of  the 
Danish  debt,  and  for  the  restoration  of  vessels  with  their  cargoes  captured 
by  Denmark  during  the  war,  whether  Austrian,  Prussian,  or  German,  and 
of  cargoes  belonging  to  the  subjects  of  these  states  captured  on  neutral  ves-^ 
sels,  as  well  as  of  ships  seized  by  Denmark  on  military  grounds.  The 
troops  of  Austria  and  Prussia  are  to  evacuate  Jutland  within  three  weeks. 
(Martens,  “ Nouv.  Rec.  Gen.,”  xvii.,  2,  474-48G.) 

With  this  treaty  the  German  Confederation  had  nothing  to  do,  and  it 
was  not  even  communicated  to  their  assembly.  Austria  and  Prussia  having 
joint  possession  while  the  Confederation  had  its  old  rights,  and  Prussia 
having  ulterior  views  of  its  own,  questions  could  not  fail  to  arise  in  regard 
to  the  government  of  the  duchies,  especially  as  to  whether  the  Duke  of 
Augustenburg  should  be  accepted  provisionally  as  their  ruler.  As  a pre- 
vention of  future  difficulties  between  the  two  governments,  they  entered, — 

August  14,  1865,  into  the  Convention  of  Gastein,  by  which  the  joint  do- 
minion was  divided  between  the  parties.  Schleswig  was  to  be  controlled 
by  Prussia,  Holstein  by'  Austria,  and  Lauenburg  was  to  be  in  the  possession 
of  the  Crown  of  Prussia  on  the  payment  of  2,500,000  Danish  ri.K-dollars 
to  Austria.  The  port  of  Kiel  in  Holstein  was  to  be  used  by'  the  vessels 
of  both  parties,  but  the  command  and  police  of  the  place  was  to  be  in  the 
hands  of  Prussia,  with  the  i-ight  of  building  and  occupying  fortifications 
there,  until  a federal  fleet  should  be  created  with  Kiel  for  its  port,  which 
Austria  and  Prussia  should  propose  to  the  Diet.  Rendsburg  was  to  become 
a federal  fortress,  and  at  present  to  have  an  Austro-Prussian  garrison  with 
alternating  command.  Prussia  could  maintain  two  military  routes  in  Hol- 
stein, from  Lubeck  to  Kiel,  from  Hamburg  to  Rendsburg,  with  a telegraphic 
line  between  the  latter  places,  and  with  the  right  of  constructing  and 
directing  a canal  from  the  North  Sea  to  the  Baltic  through  Holstein,  for 
which,  duties,  equal  for  all  nations  and  only  sufficient  to  keep  it  in  repair, 
might  be  levied.  The  intention  of  the  parties  was  to  bring  the  duchies 
into  the  Zollverein,  and  Austria  would  give  a representative  of  Holstein 
full  powers  for  that  purpose.  Lauenburg  was  freed  from  all  the  expenses  of 
the  war,  which  .should  be  assessed  on  the  gther  duchies  in  the  ratio  of  pop- 
ulation. (“  Annuaire  des  Deu.x  Mondes  ’ for  1864-1865,  or  vol.  xiii.,  971.) 

The  arrangements  of  Vienna  and  Gastein,  contrary  to  the  treaties  of 
1815  and  of  London  in  1852,  formed  without  the  consent  of  the  Diet,  of 
the  inhabitants,  and  of  the  claimants  of  the  dukedom,  were  regarded  by 


494 


APPENDIX  II. 


tlie  Frenoli  and  British  Governments  as  violations  of  public  law,  and  thej 
alarmed  and  displeased  many  of  the  secondary  German  powers.  Bavaria, 
Saxony,  and  IIcssc- Darmstadt  proposed  in  the  Diet  that  the  two  great 
powers  should  be  requested  to  convoke  a free  House  of  Representatives  in 
Holstein,  in  order  to  cooperate  in  the  settlement  of  questions  relating  to 
the  Elbe  Duchies,  and  to  act  in  view  of  the  admission  of  Schleswig  into 
the  Confederation.  (November  4,  18G5.)  This  measure  was  substantially 
defeated.  Prussia  showed  a disposition  to  regard  the  claims  of  the  Duke 
of  Augustenburg  as  worth  nothing,  and  to  treat  Schleswig  as  if  it  had  no 
rights.  Austria,  on  the  other  hand,  favored  or  endured  the  pretensions 
of  the  Duke.  Difficulties  arose  between  these  two  j)owers.  The  half  year 
before  the  beginning  of  the  war  of  186G  was  filled  up  ivith  negotiations 
and  efforts  to  bring  them  into  harmony,  with  a Prussian  scheme  to  remodel 
the  Diet,  with  armaments  and  counter-armaments.  In  May,  18GG,  Aus- 
tria announced  to  the  Diet  its  inability  to  settle  the  questions  with  Prussia 
regarding  the  duchies  in  conformity  with  the  law  of  the  Confederation, 
and  placed  the  management  of  the  affairs,  “ which  were  of  a character 
wholly  German,”  in  the  hands  of  the  Federal  Assembly.  Soon  after  this, 
Prussian  troops  entered  Holstein,  professedly  to  maintain  the  right  of  oc- 
cupying Altona  jointly  with  Austria,  which  the  latter  declared  to  be  con- 
trary to  the  Convention  of  Gastein,  and  a ground  for  war  if  the  troops 
,'ihould  not  be  recalled.  (June  8.)  Three  days  later  the  Diet  was  in- 
formed by  Austria  that  Prussian  troops  were  in  occupation  of  Holstein, 
and  that  the  Emperor  had  abstained  from  repelling  force  by  force.  (June 
11.)  After  other  three  days  the  Diet  voted  to  accept  a motion,  made  by 
Austria  and  proposed  in  the  preceding  session,  that  the  federal  army  should 
be  mobilized.  The  Prussian  representative  thereupon  declared  that  the 
Constitution  of  the  Confederation  was  dissolved,  and  that  his  functions 
had  ceased.  (June  14.)  The  Emperor  of  Austria  on  the  17th  of  June 
issued  a manifesto,  in  which  he  says  that  Prussian  troops  had  entered  Hol- 
stein; that  the  estates  convoked  b}"  the  imperial  governor  had  been  dis- 
persed by  force;  that  the  legitimate  authority  in  Holstein,  given  by  the 
Treaty  of  Vienna  in  common  to  both  powers,  had  been  claimed  by  Prus- 
sia exclusively;  and  that,  when  the  Confederation  saw  in  these  doings  a 
violation  of  treaties  and  ordereil  the  mobilization  of  the  federal  army, 
Prussia  took  the  fatal  step  of  declaring  that  she  went  out  of  the  Confed- 
eration, demanded  of  the  Gorman  governments  the  adoption  of  a so  called 
plan  of  reform,  which  in  reality  was  nothing  but  a division  of  Germany, 
and  sent  troops  against  governments  which  remained  faithful  to  the  federal 
pact.  The  war  now  began. 

The  states  which  took  the  side  of  Austria  were  Saxony,  Hanover, 
Hesse-Cassel,  Hesse-Darmstadt,  Nassau,  Frankfort,  and  the  South  Ger- 
man states.  The  other  states  of  North  Germany  left  the  Confederation, 
nearly  all  of  them,  in  June,  and  were  under  the  control  of  Prussia.  The 


APPENDIX  II. 


495 


war  was  short,  and  ended  in  favor  of  the  Prussian  arms  — the  more  easily  as 
Austria  had  an  Italian  war  on  her  hands.  The  army  of  Hanover  eapitu- 
lated  on  the  29tli  of  June.  By  the  3d  of  July  a series  of  victories  over 
the  Sa.xons  and  Austrians  ended  with  the  final  one  of  Sadowa,  by  which 
the  Austrian  forces  ■were  completely  broken,  and  the  way  was  ojjened  to 
Vienna.  In  July  the  troops  of  the  Confederation  on  the  Khine  were  de- 
feated by  inferior  Prussian  forces,  and  the  war  was  e.xtinguished  in  that 
quarter.  Two  days  after  the  battle  of  Sadowa  the  Emperor  of  Austria 
put  Venetia  into  the  hands  of  Na[)oleon,  hoping  to  secure  him  as  an  ally, 
but  he  acted  only  as  a mediator. 

1866,  July  26.  Convention  of  Nikolsburg  in  Moravia.  The  prelimi- 
naries of  peace,  arranged  at  this  jjlacc,  had  for  their  basis  that  Austria 
should  go  out  of  the  Confederation,  should  recognize  Prussia’s  new  acqui- 
sitions of  territory,  and  should  cqtisent  to  a substitute  for  the  existing  fed- 
eral union.  Austria  was  to  give  up  no  territory  but  Venetia;  and  Saxony, 
which  had  been  occupied  by  the  enemy  in  the  war,  -was  to  be  restored  to 
its  former  limits.  Prussia  engaged  to  obtain  the  adhesion  of  Italy  to  these 
preliminaries  whenever  Venetia  should  be  transferred.  — The  secondary 
states  of  the  Confederation,  which  had  sided  against  Prussia,  were  to  pay 
her  indemnities  for  the  expenses  of  the  war:  Bavaria  thirty,  Wurtemburg 
eight,  Baden  six,  Ilesse  three  millions  of  florins,  and  Saxony  ten  millions  of 
thalers.  They  consented  to  the  preliminaries  of  Nikolsburg  relating  to  a 
Confederation  in  North  Germany  and  to  territorial  acquisitions  of  Prussia, 
and  made  several  other  arrangements,  among  -which  were  cessions  of  ter- 
ritory, as  that  of  Hesse-IIomburg  made  b}’  Hesse-Darmstadt.  Saxony, 
although  entire  in  its  territory,  submitted  to  terms  galling  to  an  independ- 
ent state,  as  to  that  of  being  occupied  by  mixed  garrisons  — the  garrison 
of  Kbnigstein  being  exclusively  Prussian  — until  the  reorganization  of 
things,  and  to  that  of  being  represented  by  Prussian  international  agents, 
where  it  had  no  legations  of  its  own,  or  where  they  -were  vacant.  (Comp. 
“ Annuaire  des  Deux  Mondes,”  xiv.,  for  1866,  1867,  363,  367.) 

1866,  August  23.  Peace  of  Prague,  on  the  basis  of  the  preliminaries  of 
Nikolsburg.  The  leading  provisions  are  these:  The  Emperor  of  Austria 
consents  to  the  union  of  the  Lombardo-Venetian  Kingdom  with  the  King- 
dom of  Italy,  on  condition  of  the  liquidation  of  the  debts  chargeable  to  the 
ceded  territory  in  conformity  with  the  Treaty  of  Zurich.  (Article  II.) 
The  Emperor  of  Austria  recognizes  the  dissolution  of  the  Confederacy,  and 
consents  to  a new  organization  of  Germany,  in  which  Austria  is  to  have 
no  part.  He  promises  to  recognize  the  closer  federal  union  to  be  founded 
north  of  the  Main  by  the  King  of  Prussia,  and  gives  his  consent  to  a 
union  of  the  German  States  south  of  that  line,  which  is  to  have  national 
tics  with  the  North-German  Confederation,  and  an  independent  interna- 
tional existence.  (Article  IV.)  — Austria  transfers  to  Prussia  all  rights 
over  the  duchies  of  Schleswig  and  Holstein  acquired  by  the  Peace  of  Vi- 


496 


APPENDIX  II. 


enna  of  October,  1864,  with  this  reservation,  that  the  inhabitants  of  North- 
ern Schleswig  [i.  e.,  of  the  Danish  part]  shall  be  united  to  Denmark,  if 
they  ex[)ress  the  desire  by  a free  vote.  (Article  V.) — Prussia  allows 
Sa.xony  to  subsist  in  its  actual  territorial  e.xtent,  reserving,  however,  for 
a special  treaty  with  Saxony  questions  touching  the  expenses  of  the  war 
and  its  future  position  in  the  Confederation  of  North  Germany.  Austria 
promises  to  recognize  the  new  organization  which  the  King  of  Prussia  shall 
establish  in  North  Germany,  including  territorial  changes  which  shall  be 
its  consequence.  (Article  VI.) — The  next  Articles  (VII.-X.)  contain 
sundry  provisions,  growing  out  of  the  dissolution  of  the  Confederacy,  and 
others  for  the  relief  of  persons  in  the  duchies.' — Austria  agrees  to  pay  to 
Prussia,  for  part  of  the  e.xpenses  of  the  war,  forty  millions  of  thalers, 
ininua  fifteen  millions  which  she  has  a right  by  the  aforementioned  Treaty 
of  Vienna  to  e.xact  from  the  duchies,  and  five  other  millions  to  be  set  off 
against  the  support  of  Prussian  armies  in  Austrian  territories  until  the  con- 
clusion of  the  i)cace  — that  is,  a net  sum  of  twenty  millions.  (Article 
XI.) — All  past  treaties,  not  dissolved  by  the  extinction  of  the  Ger- 
man Confederation,  are  renewed.  (.Article  XIII.)  — “ Annuaire  des  Deu.x 
IMundes,”  u.  s.,  p.  804. 

By  a.  Prussian  decree  of  September  20,  1806,  certain  conquered  por- 
tions of  the  old  Confederation  — Hanover,  Electoral  Hesse,  Nassau,  and 
Fi  ankfort — were  incorporated  into  that  kingdom.  Schleswig-Holstein  be- 
came Prussian  by  the  Peace  of  Prague,  and  Lauenburg  by  tbe  Convention 
of  Gastein. 

The  results  of  the  war  and  of  the  treaties  were  thus  the  hegemony  of 
Prussia  and  the  e.xclusion  of  Austria  from  Germany,  a large  accession  of 
territory  to  Prussia,  with  four  and  a half  millions  of  inhabitants,  si.xty-one 
millions  of  thalers  as  an  indemnity,  and  new  seaports  rendering  naval  ex- 
tension possible.  (Comp.  “Annuaire,”  u.  s.,  p.  368.) 

For  the  Constitution  of  the  Confederation  of  North  Germany,  adopted 
April  17,  1867,  by  twenty-two  states,  see  the  “Annuaire,”  u.  s.,  810.  See 
also  Lawrence’s  recent  Commentary  on  Wheaton,  ii.,  1-76  (which  has 
been  of  essential  service  in  preparing  this  sketch  of  the  Schleswig-Holstein 
quarrel),  and  Prof.  F.  Thudichum’s  “ Verfassungsgesch.  Schleswig- Hol- 
steins  von  1806-1852,”  Tiibing.,  1871. 

1871.  February  26.  Preliminaries  of  a peace  signed  at  Versailles,  be- 
tween France  ami  Germany,  terminating  tbe  brief  but  sharp  war  which 
began  in  July  of  the  year  1870.  Prince  Leopold  of  Hohenzollern  had 
been  a candidate  for  the  vacant  throne  of  Spain,  with  the  privity-  of  King 
AVilliam  of  Prussia,  bis  remote  relative  and  the  head  of  his  house.  By  in- 
structions, Count  Benedetti,  the  French  Ambassador,  demanded  of  King 
AVilliam  the  declaration  that  he  approved  of  tbe  renunciation,  and  the  as- 
surance that  it  should  never  be  resumed.  The  King  formally  refused  what 
was  demanded,  and  granted  no  more  audiences  to  the  ambassador.  This 


APPENDIX  11. 


497 


was  at  Ems,  July  13,  1870.  Two  days  after,  Olivier,  the  French  min- 
ister of  state,  in  the  Corps  Legislatif,  declared  the  refusal  to  give  audi- 
ence a case  of  war,  and  asked  for  a credit  of  fifty  millions  of  francs.  This 
credit  was  granted,  although  a number  of  members  attacked  the  injustice 
and  inopportune  haste  of  a war  with  Germany.  On  the  23d  of  July  a 
proclamation  of  the  Emperor  Napoleon  affirmed  that  the  honor  of  France 
had  been  wounded  by  Prussia,  so  that  war  was  inevitable.  The  principal 
events  of  this  war  were  as  follows  ; August  6,  battle  of  Worth  or  Fi’osch- 
willer.  August  16,  battle  of  Mars-le-Tour,  near  Metz,  and  also  of  Toul. 
August  18,  battle  of  Metz.  September  1,  battle  of  Sedan.  September  2, 
capitulation  of  Sedan;  100,000  prisoners  are  taken;  the  Emperor  Napo- 
leon surrenders  himself  to  the  Prussians.  September  4,  a mob  at  Paris 
demands  the  fall  of  the  dynasty  and  the  proclamation  of  a republic.  Sep- 
tember 19,  Paris  is  invested.  September  23,  Toul  taken.  September  28, 
Strasburg  capitulates.  October  27,  capitulation  of  Bazaine  at  Metz,  with 
an  immense  army.  November  8,  Verdun  taken.  November  10,  Neuf- 
Brisach  surrenders.  December  12,  Phalsbourg  surrenders.  1871,  January 
18,  the  King  of  Prussia  takes  the  title  of  German  Emperor  by  request  of  all 
the  German  States  and  a new  Empire  is  constituted.  January  28,  capitula- 
tion of  Paris,  by  a convention  at  Versailles,  which  also  provided  that  there 
.'■hould  be  a general  armistice,  except  in  the  theatre  of  war  in  the  South- 
east of  France,  and  that  elections  for  a legislative  body  should  proceed 
freely  throughout  all  France. 

The  principal  provisions  of  the  preliminary  peace  of  February  26,  1871, 
were,  (1.)  The  continuance  of  the  armistice  on  condition  that,  from  March 
3,  after  three  days’  notice,  it  might  be  renounced.  (2.)  The  agreement  to 
pay  to  Germany  five  thousand  millions  of  francs  at  certain  specified  terms, 
one  fifth  in  1871,  and  the  evacuation  of  troops  depending  on  the  payments. 
(3.)  To  cede  to  Germany  Alsace  and  part  of  Lorraine.  The  ceded  terri- 
tory included  the  departments  of  Haut  Rhin,  except  Belfort  and  a tract 
around  it,  about  eighty-three  En^rlish  square  miles  of  the  department  of 
Vosges,  Bas  Rhin,  a small  part  of  Meurthe,  and  a large  part  of  Moselle. 
(Comp.  Peace  of  Westphalia,  Append,  ii.,  under  No.  2;  Peace  of  Rys- 
wick,  under  4;  First  Peace  of  Paris  in  1814,  and  Second  Peace  of  Paris, 
under  1.)  “Nouv.  Rec.  G^n.,”xix.,  653. 

The  definitive  treaty  of  May  10,  1871,  rectifies  the  boundary  fixed  by 
the  preliminary  treaty  at  two  points  : the  district  around  Belfort,  which, 
with  the  city  and  fortress,  is  to  continue  French  territory,  is  enlarged  and 
made  to  include  some  twenty  villages;  in  consideration  of  which,  the  line 
between  the  borders  of  Luxemburg  and  the  River  Orne  at  the  northern 
end  of  the  newly  gained  land  is  made  to  run  somewhat  more  to  the  west- 
ward. (Article  I.,  and  additional  Article  III.)  Other  articles  define  the 
times  of  payment  of  the  original  sum  agreed  upon,  or  make  other  transi- 
tory provisions.  “Nouv.  Rec.  Gcn.,”x'x.,  688. 

32 


498 


APPENDIX  II. 


The  acquisitions  of  Germany  by  these  treaties  were  a territory  of  about 
5,596  English  square  miles,  containing  1,597,765  inhabitants,  all  of  which 
once  belonged  to  the  German  Emj)ire. 

18  71,  May  8.  Treaty  between  the  United  States  and  Great  Britain  for 
the  settlement  of  pending  questions  between  the  two  countries.  This  treaty 
provides,  (1.)  For  the  settlement  of  claims,  generally  known  as  the  Ala- 
bama Claims,  in  the  way  of  arbitration.  (Articles  I.-XVII.)  The  tribunal 
of  arbitration  is  to  meet  at  Geneva;  three  rules  are  laid  down  as  applicable 
to  the  case,  to  which  rules  the  parties  bind  themselves  for  the  future,  and 
invite  other  maritime  powers  to  accede  to  them.  (Article  VI.)  The  arbi- 
trators may  give  a sum  in  gross  as  their  award  for  any  failure  of  Great 
Britain  to  fulfill  any  of  her  duties  as  a neutral  in  the  case  before  the  tri- 
bunal, or  if  they  prefer  to  decide  simply  that  Great  Britain  has  failed  in 
fulfilling  her  duties  in  regard  to  particular  vessels,  according  to  the  rules  of 
International  Law,  and  especially  in  regard  to  the  tlu’ee  rules,  then  a Board 
of  Assessors  is  to  be  appointed,  whose  office  shall  be  to  decide  what  claims 
are  valid  and  what  amounts  shall  be  paid,  on  account  of  the  failure  in  duty, 
in  regard  to  each  vessel.  (Articles  Vll.-X.)  (2.)  Articles  XYlIl. -XXXIII. 
contain  (o.)  An  adjustment  of  difficulties  iu  regard  to  fisheries  of  vessels 
from  the  United  States  on  the  coasts  of  Bi  itish  North  America.  This  mat- 
ter is  arranged  substantially  as  it  was  in  the  Reciprocity  Treaty  of  1854,  in 
regard  to  giving  rights  to  persons  of  each  nationality  of  fishing  on  the  coasts 
of  the  other,  (h.)  Lake  Michigan,  certain  rivers  in  Alaska,  and  the  St. 
Lawrence  from  45°  north  latitude  to  the  sea,  are  free  and  open  to  the  peo- 
I)le  of  both  nations,  (c.)  Fish  and  fish-oil,  with  small  exceptions,  the  prod- 
uce of  fisheries  of  the  United  States,  or  of  the  Dominion  of  Canada,  or  of 
Prince  Edward’s  Islanil,  arc  to  bo  admitted  into  each  country,  respectively, 
free  of  duty.  (Article  XXI.)  (d.)  Commissioners  are  to  be  appointed 
to  determine  the  value  of  privileges  conceded  by  each  state  to  the  citizens 
or  subjects  of  the  other.  (Comp.  § 227.)  (e.)  Pj  ivilege  of  transit  without 

payment  of  duties,  and  of  transportation  from  one  place  to  another  in  the 
territory  of  each  nation  across  the  territory  of  the  other,  is  conceded. 
(3.)  The  question  respecting  a part  of  the  boundary  line  on  the.  Pacific  — 
whether  it  ought,  by  the  Treaty  of  1846,  to  be  run  through  the  Rosario 
Straits  or  through  the  Canal  de  Haro,  was  to  be  submitted  to  tlu*  Emjieror 
of  Germane,  whose  award  as  to  the  meaning  of  the  treaty  should  be  final 
and  conclusive.  (Articles  XXXIV.-XLII.) 

As  a sequel  to  the  treaty  we  may  mention  briefly  the  results  of  the  arbi- 
trations, which,  and  especially  that  at  Geneva,  ha\  e been  looked  on  with 
very  great  interest,  owing  to  the  hope  that  the  peaceable  decision  of  the 
very  important  questions  submitted  may  be  an  example  and  an  omen  for 
the  future.  (1.)  The  tribunal  at  Geneva,  where,  besides  two  members 
appointed  by  the  parties,  Switzerland,  Italy,  and  Brazil  furnished  each  a 
member,  met  December  15,  1871,  and  in  consequence  of  a claim  for  indi- 


APPENDIX  II. 


499 


rect  damages  made  in  the  “case  ” of  the  United  States,  to  which  Great 
Britain  objected,  it  was  uncertain  for  a time  whether  that  government 
would  not  withdraw  its  case  from  consideration  altogether.  On  the  15th  of 
June,  1872,  however,  the  tribunal  decided  that  they  had  arrived  at  the 
conclusion  “ That  these  [indirect]  claims  did  not  constitute,  on  the  prin- 
ciples of  international  law  aj)plicable  to  such  cases,  good  foundation  for  an 
award  of  compensation  or  computation  of  damages  between  nations,  and 
hence  should  be  wholly  excluded  from  the  consideration  of  the  tribunal,  in 
making  its  award.”  After  this  the  work  of  the  tribunal  proceeded,  and  on 
the  14th  of  September,  1872,  the  final  award  was  given.  It  was  in  brief, 
that  Great  Britain  had  failed  to  fulfill  its  duties  as  specified  by  one  or  more 
of  the  three  rules  as  it  respected  the  Alabama,  the  Florida,  and  their  ten- 
ders, and  as  it  respected  the  Shenandoah  after  its  departure  from  Mel- 
bourne, February  18,  1865.  No  award  was  granted  for  the  cost  of  pursu- 
ing these  vessels,  nor  for  prospective  earnings  of  vessels  destroyed  by  them, 
nor  for  gross  freights  so  far  as  they  exceeded  net  freights.  A gross  sum 
was  awarded  to  the  United  States  of  $15,500,000  in  gold,  based  on  actual 
losses  of  vessels  and  goods  sustained  from  these  three  Confederate  vessels. 

The  three  rules  are  of  importance,  since  they  define  international  law 
as  it  is  to  be  understood  between  the  parties.  We  subjoin  them. 

“ A neutral  government  is  bound,  — 

First.  “ To  use  due  diligence  to  prevent  the  fitting  out,  arming,  or 
equipping,  within  its  jurisdiction,  of  any  vessel,  which,  it  has  reasonable 
ground  to  believe,  is  intended  to  cruise  or  to  carry  on  war  against  a power 
with  which  it  is  at  peace;  and  also  to  use  like  diligence  to  prevent  the  de- 
parture from  its  jurisdiction  of  any  vessel  intended  to  cruise,  or  carry  on 
war  as  above,  such  vessel  having  be(!n  specially  adapted,  in  whole  or  in 
part,  within  such  jurisdiction  to  warlike  use. 

Secondly.  “ Not  to  permit  or  suffer  either  belligerent  to  make  use  of  its 
ports  or  waters,  as  the  base  of  naval  operations  against  the  other,  or  for 
the  purpose  of  the  renewal  or  augmentation  of  military  supplies  or  arms, 
or  the  recruitment  of  men. 

Thirdly.  “To  exercise  due  diligence  in  its  own  ports  and  waters,  and 
as  to  all  persons  within  its  jurisdiction,  to  prevent  any  violation  of  the 
foregoing  obligations  and  duties.” 

The  tribunal,  or  a majority  of  its  members,  decided  some  points  of  great 
interest  in  respect  to  the  interpretation  of  the  three  rules  before  voting  on 
the  award.  Some  of  these  are  (n.)  That  due  diligence  (Rules  1 and  3) 
ought  to  be  exercised  by  neutral  governments  in  proportion  to  the  belliger- 
ent’s risk  of  suffering  from  any  failure  of  the  neutral  to  fulfill  his  obligations. 
(b.)  “The  effects  of  a violation  of  neutrality  by  means  of  the  construction, 
e(jnipmcnt,  and  armament  of  a vessel,  are  not  done  away  with  by  any  com- 


500 


APPENDIX  II. 


mission  wliicli  the  government  of  the  belligerent  power,  benefited  by  the 
violation  of  neutrality,  may  afterwards  have  granted  to  that  vessel ; and 
the  ultimate  step,  by  which  the  offense  is  completed,  cannot  be  admissible 
as  a ground  for  the  absolution  of  the  offender,  nor  can  the  consummation 
of  his  fraud  become  the  means  of  establishing  his  innocence.”  (c.)  “The 
privilege  of  exterritoriality,  accorded  to  vessels  of  war,  has  been  admitted 
into  the  law  of  nations,  not  as  an  absolute  right,  but  solely  as  a proceeding 
founded  on  the  principles  of  courtesy  and  mutual  deference  between  differ- 
ent nations,  and  therefore  can  never  be  appealed  to  for  the  protection  of 
acts  done  in  violation  of  neutrality.” 

The  parties  to  the  Treaty  of  Washington  agree  to  invite  other  powers  to 
accede  to  the  three  rules,  as  well  as  to  adopt  them  for  their  guidance  to- 
ward each  other  in  future.  But  many  in  England  were  dissatisfied  with 
the  interpretation  of  the  rules  given  by  the  arbitrators.  This  was  shown 
especially  in  a debate,  March  21,  1873,  on  an  address  to  the  crown  which 
had  been  moved,  praying  the  Queen,  when  the  rules  should  be  brought 
before  other  governments,  to  declare  her  dissent  from  the  principles  set 
forth  by  the  tribunal  as  the  basis  of  their  award.  The  proposition  was 
dropped.  But  here  we  have  two  governments  differing  in  their  interpre- 
tation of  the  I'ules,  yet  bound  to  observe  them  and  to  procure,  if  possible,  the 
adhesion  to  them  of  other  powers.  As  far  as  future  difficulties  are  con- 
cerneil,  we  must  admit  that  any  other  board  of  arbitrators  would  not  be 
compelled  to  follow  the  intei’pretation  of  the  tribunal  at  Geneva.  The 
ju’csent  case  only  is  governed  by  the  arbitrators’  interpretation.  Their  rea- 
sons for  judging,  contained  in  their  expressions  of  opinion,  are  not  obiter 
dicta  ; they  are  more  like  interpretations  given  by  judges  which  succeeding 
judges  may  set  aside.  This  we  say,  believing  that  the  tribunal’s  opinions 
were  right,  and  believing  also  that  it  is  only  by  courtesy,  and  for  conven- 
ience, and  not  at  all  by  right,  that  a status  of  belligerenc}'  is  allowed,  in 
very  moilern  times,  to  an  organized  body  of  revolters  who  have  no  recog- 
nized political  existence. 

The  award  of  the  Emperor  of  Germany,  on  the  question  of  boundary, 
was  rendered  October  21,  1872.  It  was  in  favor  of  the  claim  of  the  United 
States  — that  the  line  ran  through  the  Canal  de  Haro,  leaving  the  Island 
of  San  Juan  and  its  group  within  the  territory  of  the  United  States. 

The  commission  relating  to  the  question  of  the  comparative  value  of  the 
privileges  granted  by  each  of  the  two  contracting  parties  to  the  fishermen 
of  the  other,  sat  at  Halifax  in  1877,  and  awarded  $5,500,000  to  Great 
Britain. 

1878.  Preliminary  treaty  of  peace  between  Russia  and  Turkey,  signed,  at 
San  Stefano,  February  10  (March  3).  Differences  arose  in  Herzegovina, 
in  1875,  and  assistance  was  derived  by  the  rebels  from  Servia,  Montene- 
gro, and  Bosnia,  in  1876.  The  unprovoked  war  in  Servia  threatened  to 
bring  on  a European  war,  but  the  Turks  got  the  better  in  the  contest. 


APPENDIX  II. 


501 


Meanwhile,  a strife  between  Cliristians  in  Bulgaria  (excited  in  part  by  se- 
cret societies,  and  by  the  Circassians  and  Basbi-Bazouks,  with  other  Mo- 
bainiuedans)  led  to  horrible  atrocities.  In  the  autumn  of  1876,  the  Czar 
thought  that  force  should  be  used  to  stop  Turkish  misrule.  A confer- 
ence of  representatives  of  the  signatories  of  the  treaty  of  1856  assembled 
at  Constantinople,  in  December,  1876,  but  effected  nothing.  Russia  then 
went  to  war  on  its  own  account,  alleging  the  cruelties  in  Bulgaria  and  the 
oppression  in  Servia.  The  result  of  the  war  was  to  crush  Turkey  and 
bring  an  invading  array  near  to  the  capital.  The  separate  peace  and  a 
number  of  its  special  stipulations  were  flagrant  violations  of  the  treaties  of 
1856  and  1871.  As  this  treaty  has  been  superseded  by  the  definitive  treaty, 
we  give  only  the  substance  of  its  leading  articles  : (1.)  Bulgaria,  with  a 
vastly  gieater  territory  than  before,  comprising  nearly  the  whole  of  Rou- 
melia,  was  to  be  a self-governing  tributary  principality,  electing  its  own 
prince,  with  a Christian  government,  and  a national  militia.  An  assembly 
of  Bulgarian  notables  was  to  organize  a future  administration  under  the 
superintendence  of  a Russian  commissioner,  and  in  the  presence  of  an  Ot- 
toman comudssioner  in  conformity  with  the  precedent  established  in  1830, 
after  the  peace  of  Adrianople,  in  the  Danubian  principalities.  (Articles  VI., 
YH.)  The  new  system  was  for  two  years  to  be  under  the  superintendence 
of  a Russian  commissioner.  (Article  VII.)  The  Ottoman  army  is  required 
to  evacuate  the  province,  the  fortresses  are  to  be  razed,  and  Russian  troops 
are  to  occupy  the  country  for  about  two  years.  The  tribute  to  be  paid  by 
Bulgaria  to  the  Ottoman  government  is  to  be  determined  by  an  agreement 
between  Russia,  the  Ottoman  government,  and  the  other  Cabinets.  The 
Porte  shall  have  the  right  to  transport  regular  troops,  etc.,  through  Bulga- 
ria by  fixed  routes,  and  to  send  its  postal  service  and  telegraphs  through 
the  province.  (Articles  VIII.-XI.)  Montenegro  and  Servia  shall  be  in- 
dependent, with  boundaries  partly  new,  to  be  adjusted  by  boards  of  com- 
missioners. Roumania  also  is  to  be  Independent.  1 ,410,000,000  roubles 
are  to  be  paid  by  the  Porte  as  war-indemnity,  of  which  1,100,000,000  can 
be  discharged  by  the  cession  of  certain  territory,  in  wdiich  Ardahan,  Kars, 
Batoum,  Bayazet  are  included  with  other  places.  (Articles  ^ .-XIX.) 

The  definitive  Treaty  of  Berlin,  signed  Jidy  13,  and  ratified  August  3, 
1878,  consists  of  si.xty-three  articles,  of  wdiich  Articles  I.-XII.  relate  to 
Bulgaria;  XlH.-XXli.  to  a new  province  of  East  Roumelia;  XX\  . to  Bos- 
nia and  Herzegovina;  XXVI.-XXXIII.  to  Montenegro;  XXXIV.-XLII. 
to  Servia;  XEin.-LVII.  to  Roumania  and  the  Danube;  LVIII.-LXI.  to 
the  eastern  territory  in  Asia  Minor;  LXII.  to  general  liberties  in  the  Otto- 
man Empire;  and  EXIII.  maintains  the  Treaty  of  Paris  in  1856,  and  that 
of  London  in  1871,  as  far  as  their  provisions  are  not  abrogated  or  modified 
by  the  stipulations  of  the  Treaty  of  Berlin  itself.  Of  the  indemnity  to  be 
paid  by  Turkey  to  Russia  the  definitive  treaty  takes  no  notice. 

The  definitive,  like  the.  preliminary  treaty,  establishes  Bulgaria  as  a» 


502 


APPENDIX  II. 


autonomous  tributary  principality  under  the  Sultan’s  suzerainty,  with  a 
Christian  government  and  a national  militia.  The  frontier  from  Servia 
follows  the  Danube  to  a point,  cast  of  Silistria,  to  be  deteimiined  by  a 
European  commission,  thence  crosses  to  the  Black  Sea  to  the  south  of 
Mangalia,  which  is  included  in  lloumanian  territory,  thence  follows  the 
coast  to  a brook,  up  the  channel  of  which  it  ascends  to  the  Balkan,  and 
follows  the  high  lands  to  the  former  eastern  frontier  of  Servia,  and  thence 
that  frontier  to  the  Danube.  The  induce  of  Bulgaria  shall  be  freely  chosen 
by  the  population  and  confirmed  by  the  Porte,  with  the  assent  of  the  signa- 
tory powers.  The  organic  law  shall  be  drawn  up  by  Bulgarian  notables 
convened  at  Tirnova  before  the  choice  of  a prince,  who  shall  belong  to  no 
reigning  dynasty  from  among  the  great  European  powers.  No  one  shall 
be  excluded  from  any  rights,  civil  or  political,  or  profession  or  industry,  on 
account  of  his  religious  confession.  The  provisional  administi  ation  shall  be 
under  a Russian  commissioner  until  the  organic  law  shall  be  completed,  and 
he  shall  be  aided  by  a Turkish  commissioner  and  consuls  of  other  powers 
delegated  ad  hoc.  The  provisional  regime  shall  not  continue  longer  than 
nine  months.  The  tribute  to  be  paid  to  the  suzerain  shall  be  fi.ved  by 
agreement  between  the  powers  signatory  of  the  treaty  at  the  close  of  the 
first  year  of  the  new  organization.  The  powers  will  decide  also  what  part 
of  the  debt  of  the  Empire  ought  to  fall  to  Bulgaria’s  share.  The  Ottoman 
army  will  Iea\  e Bulgaria,  and  within  a year  all  fortresses  be  razed.  Mus- 
sulman proprietors,  living  outside  the  principality,  may  farm  out  their  prop- 
erty, or  liave  it  administered  by  third  parties. 

South  of  the  Balkans,  and  bounded  north  and  west  by  Bulgaria,  a prov- 
ince is  constituted  by  the  treaty,  to  be  called  Eastern  Roumelia.  This  is 
to  be  under  the  direct  authority  of  the  Sultan,  to  have  a Christian  governor 
general  and  an  administrative  autonomy.  The  governor,  nominated  by  the 
Sultan,  shall  hold  office  for  five  years.  A European  commission  will  de- 
termine within  three  months,  in  concert  with  the  Porte,  the  organization 
of  Eastern  Roumelia,  and  will  administer  the  finances  of  the  province  in 
concert  with  the  Sublime  Porte  until  the  organization  shall  be  comj)leted. 
The  Russian  army  of  occupation  in  Bulgaria  and  Eastern  Roumelia  shall  not 
exceed  fifty  thousand  men,  to  be  maintained  at  the  e.xpcnse  of  the  country 
occupied,  nor  continue  the  occupation  longer  than  nine  months  after  the 
c.xchange  of  the  ratification  of  the  present  treaty. 

The  organic  law  of  18G8,  with  equitable  modifications,  the  Sultan  under- 
takes to  apply  in  the  Island  of  Crete,  and  to  introduce  similar  laws,  except- 
ing as  regards  exemption  from  taxation,  in  other  jrarts  of  Turkey  in  Europe 
for  which  the  present  treaty  has  provided  no  special  organization.  In  so 
doing  he  will  consult  the  European  Commission  for  Eastern  Roumelia. 

Bosnia  and  Herzegovina  shall  be  occupied  by  Austria-Hungary,  except 
the  Sandjak  of  Novi-Bozar,  between  Servia  and  Montenegro,  where  the 
Ottoman  administration  will  continue,  according,  to  the  wish  of  Austria. 


APPENDIX  II. 


503 


^lontenegro  is  recognized  by  the  Sublime  Porte  and  all  the  contracting 
powers  as  an  independent  state.  The  free  exercise  of  all  forms  of  worship, 
and  the  enth’e  equality  of  all  confessions,  as  it  respects  civil  and  political 
rights  and  the  exercise  of  professions  and  industries,  shall  be  assured  to  all 
Montenegrins  as  well  as  foreigners  residing  in  the  country.  These  rights 
are  assured  also  in  Servia  and  Roumania  by  the  treaty.  Mussulmans  or 
others  possessing  property  in  Montenegro  and  wishing  to  reside  elsewhere 
may  farm  it  out  or  administer  it  by  means  of  third  parties.  The  same  right 
is  granted  by  the  treaty  within  Servian  territory.  Montenegro  receives  by 
the  treaty  an  accession  of  territory,  among  tbe  rest  the  small  Albanian  port 
of  Antivari,  and  shall  have  complete  freedom  on  the  Royana.  It  is  to  have 
neither  ships  nor  a flag  of  war;  Antivari  is  to  remain  closed  to  all  publie 
vessels,  and  shall  adopt  the  maritime  code  in  force  in  Dalmatia.  Monte- 
ne<ifro  is  to  bear  for  the  new  territory  a share  of  the  public  Turkish  debt, 
such  as  the  representatives  of  the  powers  at  Constantinople  shall  deter- 
mine. The  same  rule  applies  to  Servia  also. 

Servia  is  recognized  as  independent,  under  conditions,  several  of  which 
have  just  been  named.  Its  territory  is  considerably  enlarged.  It  takes  the 
place  of  Turkey,  as  far  as  its  territories  are  concerned  in  engagements 
made  towards  Austria-Hungary  and  the  company  for  the  working  of  the 
railways  of  European  Turkey  in  completing  and  operating  them. 

Roumania  also  is  recognized  as  fully  independent.  As  it  respects  terri- 
tory the  part  of  Bessarabia  detached  from  Russia  by  the  peace  of  1856  is 
restored;  and  on  the  other  hand  the  islands  of  the  Delta  of  the  Danube, 
the  Isle  of  Serpents,  the  Sandjak  of  Toultcha,  are  added  to  Roumania, 
togetlier  with  a tract  to  the  south  of  the  Dobroutscha,  starting  from  the 
east  of  Silistria,  and  terminating  south  of  Mangalia  on  the  Black  Sea.  The 
commission  for  tbe  Bulgarian  boundary  is  to  determine  the  frontier.  Pro- 
visions are  then  made  touching  rights  enjoyed  under  Turkish  supremacy. 
The  sixty-second  article  is  of  great  importance.  Fhc  Sultan  engages  that 
in  no  part  of  the  Ottoman  Empire  shall  difference  of  religion  be  a ground 
for  excluding  any  person  from  the  discharge  of  civil  and  political  rights, 
admission  to  public  employments,  functions  and  honors,  or  the  exercise  of 
the  various  professions  and  industries.  All  persons  shall  be  admitted, 
without  distinction  of  religion,  to  give  evidence  before  the  tribunals.  The 
freedom  and  exercise  of  all  forms  of  worship  are  assured  to  all,  and  no 
hindrance  shall  be  offered  either  to  the  hierarchical  oj’ganization  of  the  va- 
rious communions,  or  to  their  relations  with  their  spiritual  chiefs.  Ec- 
clesiastics, pilgrims,  and  monks  of  all  nationalities,  traveling  in  Turkey 
in  Europe  or  Turkey  in  Asia,  shall  enjoy  equal  rights,  advantages,  and 
privileges.  The  right  of  official  protection  by  the  diplomatic  and  consular 
agents  of  the  powers  in  Turkey  is  recognized,  both  as  regards  the  above- 
mentioned  persons,  and  tbeir  religious,  charitable,  and  other  establishments 
in  the  holy  places  and  elsewhere.  The  rights  possessed  by  France  arc  ex- 


504 


APPENDIX  II. 


pressly  reserved ; and  it  is  well  understood  that  no  alterations  can  be  made 
in  the  status  quo  of  the  holy  places.  The  monks  of  Mount  Athos,  of  what- 
ever country  they  may  be  natives,  shall  be  maintained  in  their  former  pos- 
sessions and  advantages,  and  shall  enjoy,  without  any  exemption,  complete 
equality  of  rights  and  prerogatives. 

A convention  between  England  and  Turkey,  signed  June  4,  1878  (and 
thus  before  the  Peace  of  Berlin),  provides  that  if  Batouin,  Ardahan,  Kars, 
or  any  of  them  shall  be  retained  by  Russia,  and  if  any  attempt  shall  be 
made  at  any  future  time  by  Russia  to  get  possession  of  any  other  portion 
of  the  territories  of  His  Imperial  Majesty  the  Sultan,  as  fixed  by  the  defin- 
itive treaty  of  peace,  England  engages  to  join  His  Imperial  Majesty  the 
Sultan  in  defending  them  by  force  of  arms. 

In  return,  His  Imperial  Majesty  the  Sultan  promises  to  England  to  in- 
troduce the  necessary  reforms  (to  be  agreed  upon  at  a later  time,  between 
the  two  powers),  aiming  at  good  administration,  and  the  protection  of  the 
Christian  and  other  subjects  of  the  Sublime  Porte  in  these  territories;  and 
in  order  to  enable  England  to  secure  the  necessary  means  for  the  execution 
of  her  engagement.  His  Imperial  Majesty  further  consents  to  assign  the 
Island  of  Cyprus  to  be  occupied  and  administered  b}"  England. 

In  an  Annex  it  is  provided  (1.)  That  a Mussulman  tribunal,  with  sole 
cognizance  of  religious  matters  touching  the  IMussuhnan  population  of  the 
island,  shall  continue  to  exist.  (2.)  That  religious  property  shall  be  ad- 
ministered by  a Mussulman  residing  in  the  island,  conjointly  with  a dele- 
gate appointed  by  the  British  authorities.  (.3.)  That  England  engages  to 
pay  the  present  excess  of  revenue  over  expenditure  in  the  island,  calcu- 
lated on  the  last  five  years’  averages,  and  not  counting  produce  of  state  or 
crown  lands,  let  or  sold  during  that  period.  (4.)  That  other  crown  or 
state  lands,  not  yielding  the  rents  referred  to  under  (3),  may  be  sold  or 
leased  by  the  Porte.  (5.)  That  the  English  government  may  purchase, 
compulsorily,  uncultivated  land,  or  such  as  is  needed  for  public  improve- 
ments ; and  (6)  If  Russia  restores  to  Turkey  Kars  and  other  conquests 
made  in  Armenia  during  the  late  war,  Cyprus  will  be  evacuated  by  Eng- 
land, and  this  convention  of  1878  will  be  at  an  end. 


INDEX. 


The  references  to  the  text  are  generally  made  to  the  Sections ; those  to  Appen- 
dix i.,  to  the  pages  ; those  to  Appendix  ii.,  to  the  year  placed  at  the  beginning 
of  a paragraph. 


Aberdeex,  Earl  of,  on  the  right  of  search,  § 219. 

Adams,  J.  Q.,  on  the  Monroe  doctrine,  § 48 ; negotiations  on  suppressing  the 
slave  trade,  § 217. 

Admiralty,  English  court  of,  its  doctrine  on  notice  of  blockade,  § 203. 

Agents  of  intercourse,  § 86,  et  seq.  See  Ambassadors,  Consuls. 

Aix-la-Chapelle.  See  Congress. 

Alabama,  case  of  the,  § 170. 

Albericus  Gcntilis,  § 90 ; App.  i.,  p.  417. 

Alexander  VI.,  Eopc,  his  grants  to  Spain  and  Portugal,  § 55. 

Aliens  to  be  jirotected,  § 65  ; their  right  to  asylum,  ibid. ; right  of  innocent  pas- 
sage, ibid. ; relation  to  the  laws,  § 66  ; increase  of  humane  feelings  towards  them 
illustrated,  § 67  ; may  pass  out  of  the  status  of  aliens,  § 70  (see  Naturaliza- 
tion) ; condition  in  a hostile  country,  § 124  ; their  property  there,  ibid. 

Alliance,  Triple,  App.  ii,,  1668;  Grand,  ibid.,  1701,  under  Peace  of  Utrecht, 
1713  ; Triple,  ibid.,  1717  ; Quadruple,  ibid.,  1718 ; Hoi}',  § 47.  See  also  Treaty. 

Alternat,  § 98,  n. 

AmalR,  sea  laws  of,  App.  i.,  p.  414. 

Amazon,  the,  navigation  of,  § 62. 

Ambassador,  general  term,  § 86  ; also  denotes  one  class  of  agents,  ibid.,  and  § 98 ; 
derivation  of  the  word,  ibid. ; origin  of  privileges  of,  § 87  ; temporary  and  resi- 
dent, § 88  ; importance  of  the  latter,  ibid. ; is  there  any  obligation  to  receive 
them  ? § 89  ; what  ambassadors  may  be  rejected,  ibid.  ; right  of  sending,  § 90  ; 
credentials,  ibid. ; privileges  of,  § 91  ; inviolability  and  exterritoriality  of,  ibid, 
(comp,  those  words)  ; houses  sometimes  provided  for,  § 92  ; immunity  of  hotel 
and  goods,  ibid.  ; bis  hotel  no  asylum  for  criminals,  ibid.  ; freedom  from  imposts, 
how  far  granted,  § 93  ; abuses  of  this  jjrivilege,  former,  ibid.  ; his  liberty  of  wor- 
ship, § 94;  privileges  of  his  family  and  train,  § 95  ; his  power  over  his  suite, 
ibid. ; has  voluntary  but  not  contentious  jurisdiction,  ibid.  ; limits  of  his  privi- 
leges, § 96  ; ambassador  committing  crimes,  ibid. ; case  of  Sa,  ibid. ; of  Gyllen- 
borg,  ibid.  ; relations  of,  to  a third  power,  § 97 ; illustrations,  p.  155  ; rank  of, 
§ 98  ; classes  constituted  at  Congress  of  Vienna,  ibid. ; at  that  of  Aix-la-Cha- 
pelle, ibid. ; legates  a and  de  latere,  ibid.,  note ; ceremonial  of  courts,  ibid. ; recall 
of,  ibid. 


506 


INDEX. 


Ainistad,  case  of  the,  § 146. 

Amnesty  implied  in  peace,  § 161. 

Arii'uelles,  case  of,  § 78  (p.  117). 

Armed  neutrality,  § 163;  first  in  1780,  § 189;  second  in  1800,  § 209.  See  Ap- 
pendix ii.,  sub  annis. 

Armistice.  See  Truce. 

Ashburton,  Lord,  § 174. 

Athens.  See  Greece. 

Aubaiue,  droit  de,  § 67. 

Austria  acquires  Spanish  Netherlands  by  treaty  of  Rastadt,  App.  ii.,  1714;  also, 
Naples,  Milan,  Sardinia,  ibid.  ; exchanges  Sardinia  for  Sicily  with  Savoy,  ibid., 
1718;  Pragmatic  Sanction,  ibid.,  173.5;  acqui.sitions  by  peace  of  Passarowitz, 
ibid.,  1718  ; acquisitions  in  Poland,  ibid.,  1772,  1793  ; cedes  Netherlands  to  France, 
ibid.,  1797  ; humiliation  of,  1805,  1809,  ibid.  ; losses  by  treaties  of  Leoben  and 
Campo  Formio,  1797,  ibid. ; of  Lune'ville,  1801,  ibid.;  of  Presburg,  1805,  ibid. ; 
of  Sclionbninn,  ibid.;  recovers  territory  at  Congress  of  Vienna,  1815,  4,  ibid.; 
losses  by  ])eace  of  Villafranca  and  Zurich,  1859,  ibid. ; part  in  affairs  of  Schles- 
wig-Holstein, see  under  1864,  ibid.;  Peace  of  Vienna,  1864,  ibid.,  and  of  Gas- 
teiu,  1865,  ibid. ; Convention  of  Nikolsburg,  and  Peace  of  Prague,  1866,  ibid. ; 
separated  from  Germany,  ibid. ; naturalization  in,  § 70  ; Koszta’s  case,  § 80 ; 
Mr.  Iliilsemann’s  case,  § 82. 

Ayala  Balthazar,  A])p.  i.,  p.  417. 

Azuni,  D.  A.,  App.  i.,  p.  425. 

Balance  of  power;  meaning  of  the  phrase,  § 44;  interference  to  preserve  it  justi- 
fied, ibid. ; is  a measure  of  self-defense  against  apprehended  aggressions,  ibid. ; 
limits  to  its  exercise,  ibid. ; known  to  the  Greeks,  § 45  ; to  mediaeval  Europe, 
ibid.;  against  Austria,  ibid;  Louis  XIV.,  ibid;  Russia  in  behalf  of  Turkey, 
ibid. 

Bannns,  Bannnm,  § 193. 

Barbary  powers  form  states,  § 36,  and  are  not  pirates,  § 144. 

Belgium,  its  union  with  Holland,  App.  ii.,  1815,  9 ; disruption  in  1830,  § 50 ; in- 
terference of  the  great  powers  in  the  dispute,  ibid. ; is  neutralized,  ibid.,  and 

§ Pid- 

Belleisle,  Marshall,  case  of,  § 97. 

Belligerency,  recognition  of,  § 180,  our  practice  in  regard  to,  ibid.;  meaning  of, 
ibid. ; Confederate  States  so  regarded  by  European  states,  ibid. ; not  a hostile 
measure. 

Bemis,  on  American  neutrality,  § 177  ; on  the  case  of  the  Alabama,  § 170. 

Bentham,  J.,  §§  9,  226. 

Berlin  decree,  § 206. 

Bernard,  Mountague,  Esq.,  on  the  rules  of  war,  §§  133,  134,  135  ; on  the  jural 
character  of  crews  of  rebels’  vessels,  § 145  ; on  a neutral's  supplying  a belliger- 
ent with  coal,  § 167  ; on  the  Alabama,  § 170  ; on  the  British  Foreign  Enlistment 
Act,  etc.,  § 177  ; on  continuous  voyages,  § 207  ; on  captured  vessels  escaping  into 
neutral  waters,  § 208. 

Black  Sea,  the,  free  to  commerce  only,  § 61 ; sketch  of  negotiations  concerning, 
ibid  , and  App.  ii.,  1856. 


INDEX. 


507 


Blackstone  cited,  § 29. 

Blockade,  §§  202-206  ; what,  § 202 ; wliat  places  are  subject  to,  ibid. ; why  is  a 
breach  of  unlawful  for  a neutral,  ibid.  ; what  is  a valid  blockade,  ibid. ; validity 
sometimes  defined  by  treaty,  ibid. ; paper  or  cabinet  blockades  unlawful,  ibid.  ; 
evidence  of  the  existence  of  a,  § 20-3 ; what  is  due  notice  I iltid. ; French  and 
English  rules  of  notification,  wherein  they  differ,  § 204  ; compared,  ibid. ; when 
is  a blockade  discontinued,  § 203;  pen.alty  for  breach  of,  § 205  ; duration  of  lia- 
bility to  penalty,  ibid. ; attempts  to  stretch  the  doctrine  of  blockade,  § 206  ; Ber- 
lin and  Milan  decrees,  orders  in  council,  ibid. 

Blocking  up  of  harbors,  § 181  ; a lawful  measure  of  defense  in  war,  ibid.  ; treat- 
ment of  harbors  in  modern  warfare  against  an  enemy,  ibid. 

Bluntschli,  Dr.  J.  C.,  cited,  § 40,  note ; § 53  (Staatsr.)  ; § 118,  on  reprisals;  § 160, 
on  the  effects  of  war  upon  previous  treaties;  § 196,  objects  to  provisions  being 
regarded  as  contraband. 

Brandschatz  (German),  § 139. 

Brussels,  Conference  of,  in  1874,  on  the  rules  of  war  upon  the  land,  § 142  ; Eng- 
land’s attitude  as  to  it,  ibid. ; leading  rules  proposed,  ibid. ; opposition  to  by 
England  and  the  smaller  states,  ibid.  ; opinions  of  publicists  as  to,  ibid. 
Comp.  § 166. 

Bulmerincq,  on  extradition,  cited,  § 78. 

Bundesstaat  and  Staatenbund  (German),  § 108. 

Burning  of  vessels  captured  at  sea,  § 148.  Comp.  “ Dobson’s  Reports,”  infra. 

Bynkershoek,  Cornelius  van,  often  cited,  as  in  §§  56,  84,  85,  86,  88,  90,  91,92,  93, 
95,  96,  97,  100,  111,  121,  124,  13.3,  144,  148,  151  note,  153,  154,  163,  164,  191, 
196,  198.  See  App.  i.,  p.  420. 

CyES.vr’s  “ Gallic  War,”  cited,  § 86. 

Calhoun,  J.  C.,  on  the  Monroe  Doctrine,  § 48. 

Calvo,  C.,  cited,  § 62,  his  ,•  § 68  ; § 148  ; § 160 ; § 163  ; § 179  ; § 186 ; § 227. 

Canon  Law  on  the  Pope’s  dispensing  power,  § 8. 

Capacity,  the  jural,  of  a person  determined  by  the  law  of  his  domicil,  § 74;  im- 
portant exceptions  to  this  rule,  ibid. 

Capitulations  in  war,  § 154. 

Capture  in  war,  § 147,  et  seq.;  of  private  property  still  allowed  on  the  sea,  ibid. 
See  Neutral  Trade,  Prize,  Rules  of  1856. 

Caroline,  the,  case  of,  § 174 ; correspondence  of  Mr.  Webster  on  the,  ibid. 

Carrying  an  enemy’s  dispatches  by  a neutral,  § 199.  Comp.  Trent  case. 

Challenges  before  war,  mediaeval  practice  of,  § 120. 

Ceded  territory,  rights  of  inhabitants  of,  § 161  ; modern  privileges  granted  to  them, 
§ 54  ; what  is  conveyed  by  the  cession,  § 161. 

Ceremonial  of  the  sea,  § 84  ; of  courts,  § 83 ; § 98.  Comp.  § 52. 

Chevalier,  Michael,  cited,  § 124. 

Chesapeake,  the,  case  of,  § 174. 

China,  treaties  of,  App.  ii.,  1858  ; exterritorial  jurisdiction  granted  to  the  United 
States  by,  § 69  ; prerogatives  of  consuls  in,  § 100. 

Chivalry,  its  influence  on  international  law,  § 8. 

Christianity,  its  influence  on  European  international  law,  §§  7,  8. 

Cicero,  “De  Officiis,”  cited,  § 120. 


508 


INDEX. 


Coal,  is  it  a munition  of  wav  ? § 167. 

CoastiiiE;  and  colonial  trade  open  to  neutrals  in  war,  § 200  ; rule  of  1756,  ibid. ; is 
it  a violation  of  rights  for  a belligerent  to  prohibit  this  trade  ? § 201. 

Cocceii,  S.  de,  on  Grotius,  cited,  § 196. 

Coke,  Sir  Edward,  his  “ Institutes  ” cited,  § 8,  note  ; § 88,  note  ; § 96. 

Comity,  § 24  ; what  it  includes,  ibid. ; the  foundation  of  private  international  law, 
§ 73  ; comity  or  courtesy,  § 81  et  seq. 

Commercia  belli,  § 140. 

Confederation,  treaties  of,  § 108 ; confederation  of  the  Rhine,  App.  ii.,  1806  ; con- 
federation of  German  state.s,  ibid  , 1815  (8). 

Conference  of  Brussels,  § 142.  For  political  conferences,  see  Treaty'. 

Conflict  of  laws,  or  private  international  law,  § 73  ; its  growth,  ibid. 

Congress  of  Cambray',  App.  ii.,  1718;  Rastadt,  ibid.,  1797,  under  peace  of  Campo 
Formio  ; of  Vienna,  ibid.,  1815  ; act  of  concerning  rivers,  § 62  ; on  rank  of  am- 
bassadors, § 98 ; on  neutrality  of  Switzerland  and  part  of  Savoy  in  war,  § 163. 

Conquest,  is  there  a right  of?  § 21  ; Mably  on,  ibid.,  note. 

Consolato  del  mare,  § 189  ; App.  i.,  p.  414. 

Consuls,  origin,  § 99;  functions  and  duties,  § 100;  jurisdietion  in  some  non- 
Christian  countries,  ibid. ; privileges  and  status,  ibid. ; are  sometimes  natives  of 
the  country  of  their  residence,  ibid. 

Continuous  voyages,  rule  of,  § 207 ; origin,  ibid. ; first  related  to  colonial  trade 
carried  on  by  neutrals,  ibid. ; the  doctrine  in  its  wider  application  by  our  courts, 
ibid. 

Contraband,  §§  193-199;  meaning  of  hannum  and  contmbannum,  ^ IQ3  ; justice 
of  prohibiting  certain  trade  with  an  enemy,  ibid. ; formal  explanation  of  its 
commencement,  ibid.,  note;  what  goods  are  contraband,  § 194;  naval  stores? 
ibid.;  provisions?  ships  ready  for  use?  ibid.  Doctrine  of  occasional  contra- 
band, § 195;  is  it  just  and  sanctioned  by  usage?  196;  Kent,  Wheaton,  and 
Heffter  on,  ibid.  Preemption,  § 197  (see  that  article).  Penalty  for  contra- 
band trade,  § 198;  treaties  sometimes  modify  the  penalty',  ibid.  Conveyance 
of  troops,  ships,  despatches  to  the  enemy,  by  a neutral,  § 199;  Ti-ent,  case  of 
the,  ibid. 

Contract,  right  of.  See  Treaty. 

Convention.  Sec  Treaty.  Convention  of  1824  concerning  search  for  slaves, 
See  Search. 

Convoy,  is  there  a right  of?  § 209  ; history  of  modern  disputes  concerning,  ibid. ; 
gave  rise,  mainly,  to  second  armed  neutrality,  ibid.  ; allowed  by  conventional 
law  of  many  states,  ibid. ; justice  of  tlie  right  of  convoy',  § 210  ; neutrals  under 
belligerent  convoy,  § 211  ; dispute  between  the  United  States  and  Denmark  con- 
cerning it,  ibid.;  is  a departure  from  neutrality,  ibid. 

Cotton,  Sir  Robert,  on  rights  of  ambassadors,  § 96. 

Courtesy',  international,  § 82  et  seq. 

Courts  apply  foreign  law  in  some  cases,  § 72.  See  Private  International  Law. 

Creole,  case  of  the,  § 74. 

Crimean  war,  relaxation  of  belligerent  sea-law  in,  §§  124,  190 ; as  to  fishermen, 
§ 186. 

Crimes  of  subjects  committed  in  foreign  parts  punished  by  some  nations  at  home, 
§ 76. 


INDEX. 


609 


Curtis,  G.  T.,  on  the  case  of  the  Virginius,  § 214. 

Custom,  a source  of  iuternational  law,  § 28. 

Damm,  sea-laws  of,  App.  i.,  p.  414. 

Dana  on  Wheaton,  § 55,  n.;  §§  128,  143,  153,  174  his,  180,  196  (where  he  cor- 
rects this  book),  214. 

Danish  Straits,  dues  for  passing  through  demanded  by  Denmark,  § 61;  origin  of 
the  claim,  ibid. ; now  e.\tinguishcd  by  a payment  of  money,  ibid. 

Danube,  free  for  navigation  after  Crimean  war,  § 62.  Comp.  App.  ii.,  under 
tire  years  1856,  1878. 

Danubian  Principalities,  Russia  becomes  in  a degree  their  protector,  App.ii.,  1826, 
1829;  provisions  of  Peace  of  Paris  concerning  them,  ibid.,  1856;  a new  polity 
is  given  to  them,  ibid.,  1858  ; they  unite,  finally,  under  a prince,  1866  ; Turkey 
consents,  ibid;  they  become  entirely  independent  by  treaties  of  S.  Stefano  and 
Berlin,  ibid.,  1878. 

Davton,  W.  L.,  on  an  offer  of  the  United  States  to  accede  to  declaration  of  Paris, 
§ 128. 

Declaration  of  Paris,  §§  128,  190,  202. 

Declaration  of  Pilnitz,  § 47. 

Declaration  of  war,  necessary  in  Greece  and  Rome,  § 120;  in  Middle  Ages,  but 
not  in  modern  times,  ibid. ; why  1 ibid. ; examples  of  wars  without  declarations, 
§ 121. 

Decree  or  rcce's  of  the  Reichsdeputation  ratified  bj' the  German  Diet.  (1803.) 
App.  ii.,  under  that  year. 

Demosthenes  contra  Aristocratem,  on  restoring  exiles,  cited,  § 77,  note. 

Denmark,  concessions  of,  to  Sweden,  App.  ii.,  1660;  gains  from  Sweden,  1721  ; 
gives  up  Norway,  App.  ii.,  1814,  Swedish  Pomerania,  and  Riigen,  to  Prussia 
same  year;  the  Sound,  dues  of,  § 61  ; a part  to  the  two  armed  neutralities, 
§§  189,  209  ; dispute  with  the  United  States  on  belligerent  convoy,  § 211  ; dif- 
ficulties in  Holstein  and  Schleswig,  App.  ii.,  under  1848  and  following  years; 
peace  of  Vienna,  ibid.,  1864. 

Dietz,  F.,  etymology  of  Ambascia,  § 86. 

Dillon,  French  Consul  at  San  Francisco,  case  of,  § 100. 

Dionysius  of  Halicarnassus  on  covert  warfare,  § 133,  note. 

Discovery,  claim  from,  examined,  § 55. 

Di.spensing  power  of  the  Pope.  See  Canon  Law,  Pope. 

Divisions  of  international  law,  Vattel’s,  faulty,  § 26  ; Wheaton’s,  ibid. ; other 
divisions,  § 27. 

Dodson’s  Reports  cited,  on  burning  prizes  taken  at  sea,  § 148. 

Domicil,  what,  § 71  ; Roman  law  on,  ibid.;  definitions  of  Vattel,  Savigny,  Story  ; 
can  be  changed,  ibid. ; rules  for  determining  the,  ibid. ; can  there  be  more  than 
one  1 ibid. ; domicil  of  a person  under  another’s  power,  ibid. ; does  purpose  to 
return  after  a long  period  prevent  the  acquiring  of  domicil  1 ibid.  Law  of  domi- 
cil controls  as  to  jural  capacity,  § 74 ; important  exceptions,  ibid.;  as  affecting 
nationality  of  person  and  goods  in  war,  § 183. 

Droit  d’Angarie,  § 118,  n. 

Du  Cange,  on  mediaeval  consuls,  § 99. 

Dumont,  collection  of  treaties  by,  § 110,  and  App.  ii.,  often. 


510 


INDEX. 


Dunkirk  dismantled  and  its  harbor  ruined  b}"  a provision  of  the  Treaty  of  Utrecht 
between  Great  Britain  and  France,  App.  ii.,  1713,  1.  Comp.  § 181. 

Duplaine,  Frencli  consul  at  Boston,  case  of,  § 100. 

Dutch  Republic.  Its  independence  acknowledged  by  treaty  with  Spain,  App.  ii., 
1648  ; Treaty  of  Breda,  ibid.,  1667  ; a party  to  treaties  of  Nimeguen,  Ryswick, 
the  partition  treaties.  Treaty  of  Utrecht,  ibid.,  1678,  1697,  1698,  1713  ; to  third 
barrier  treaty,  ibid.,  1715;  to  the  Triple  Allianee,  ibid.,  1717  ; to  the  Treaty  of 
Aix-la-Chapelle,  ibid.,  1748  ; to  peace  of  with  England  in  1784,  ibid  ; con- 
quered byNajroleon,  and  beeonies  the  Batavian  Republic  (under  1792) ; a mon- 
archy, 1806  ; annexed  to  France,  1806,  p.  461  ; united  with  part  of  the  Austrian 
Netherlands  into  a Kingdom  of  the  Netherlands  at  the  Congress  of  Vienna,  ibid., 
1815;  disruption,  § 50;  disputes  with  England  on  the  eeremouial  of  the  sea, 
§ 85. 

“Edinburgh  Review,”  No.  156,  § 3;  No.  15,  § 128. 

Embargo,  civil  and  hostile,  § 118 ; hostile  hardly  falls  short  of  war,  ibid. 

Emigration,  right  of,  § 65. 

England.  Her  claims  over-the  narrow  seas  around  the  island,  § 60 ; now  in  de- 
suetude, ibid.;  doetrine  of  inalienable  allegiance,  §§  70,  221 ; now  abandoned, 
§ 70  ; elaims  of  respect  for  her  flag,  § 85 ; disputes  with  Holland  on  that  ac- 
count, ibid.  ; law  of,  to  protect  ambassadors,  § 96;  former  opinions  in  regard 
to  their  rights,  ibid. ; reprisals  b}’’,  in  Middle  Ages,  § 118  ; carried  out  the  so- 
called  right  of  pacific  blockade,  § 119;  usages  in  civil  wars  of  Cent.  XVII., 
§ 138  ; earlier  .and  later  practice,  §§  135,  138 ; efforts  to  jmt  an  end  to  the  slave- 
trade,  § 146  ; it  is  pronounced  to  be  piracy,  ibid. ; prize  courts,  § 149  ; usage  as 
to  ransom,  § 150  ; rewards  offered  for  capture  on  the  sea,  § 152  ; refuses  to  aid 
loans  to  belligerents  by  suits  before  its  courts,  § 173;  recognized  the  Confed- 
erates as  belligerents,  § 180;  doctrine  as  to  neutral  trade  in  war,  §§  185,  189; 
a party  to  the  Declaration  of  Paris  in  1856;  doctrine  as  to  occasional  contra- 
band, § 196;  as  to  preemption.  § 197  ; as  to  trade  of  neutral  with  belligerent 
opened  in  war,  § 200 ; as  to  notice  of  blockade,  § 204  ; as  to  blockade  of  ex- 
len.sive coasts  (formerly),  §206;  Orders  in  Council,  ibid.;  doctrine  as  to  convoy, 
§ 209;  practice  as  to  search,  § 212  ; discussions  with  United  States  on  search 
and  visit,  § 219  ; e.'^pecially  on  search  for  slaves,  ibid.;  treaties  of  the  two  on 
putting  down  slave-trade,  §§  217,  218,  219,  end.  England  acquires  New  Nether- 
lands at  the  Peace  of  Breda,  App.  ii.,  1667  ; acquisitions  by  Peace  of  Utrecht, 
from  France,  ibid.,  1713;  gets  Gibraltar  and  Minorca  from  Spain  (1713); 
gains  at  Treaty  of  Paris,  ibid.,  1763;  concessions  by  treaties  of  Paris  and  Ver- 
sailles (1782,  1783);  independence  of  the  United  States  acknowledged,  ibid. ; 
gains  Negapatam  from  Holland,  1783,  ibid.  ; how  affected  by  peace  of  Amiens, 
1802,  ibid.;  her  part  in  the  great  coalition  against  Napoleon,  1813,  ibid.;  her 
gains  by  treaties  of  1814,  1815,  ibid.;  treaty  concerning  Greece,  1827,  ibid.; 
treaty  concerning  a king  for  Greece,  1832,  ibid,  (also  in  1863,  ibid.) ; part  in  the 
affairs  of  Turkey,  in  1840,  1841 ; in  peace  of  1856,  and  the  treaty  modifying  it  in 
1871,  ibid.;  in  treaty  of  Berlin,  1878,  and  separate  treaty  with  Turkey,  same 
j'ear,  ibid.  Treaties  with  United  States  at  Versailles,  1783,  u.  s. ; commcrci.al 
treaty  of  1794  (comp.  §§  124,  168)  ; treaty  of  peace  at  Ghent,  1814,  ibid, 
(comp.  §§  59,  217  ; convention  of  1818,  on  fisheries,  § 59;  reciprocity  treaty 


INDEX. 


511 


of  1854,  ibid. ; Treaty  of  ‘Washington  in  1842,  on  boundaries,  etc.  (Comp,  for 
rules  of  extradition  there  made,  § 78  ; for  arrangements  to  suppress  the  slave- 
trade,  §§  218,  219;  for  discussions  on  right  of  search  for  British  subjects  on 
American  vessels  on  the  sea,  § 221.)  Treaty  of  Washington  in  1871,  ibid.; 
awards  under  it,  ibid. 

Enlistment  Act,  British,  of  1870,  § 177. 

Equality  of  sovereign  states  is  equality  of  political  rights,  § 52 ; is  not  inconsis- 
tent with  differences  of  rank  in  courts,  ibid.  ; disputes,  especially  between 
France  and  Spain,  as  to  rank,  ibid.;  present  rules  of  rank,  ibid.;  distinctions 
fading  out,  ibid.  ; comp.  §§  81-83. 

Escape  or  rescue.  A neutral  not  bound  to  surrender  ves-els  or  crews  that  have 
escaped  from  belligerents,  § 203. 

Exequatur,  § 100. 

E.xterritoriality,  what,  § 68  ; its  limits,  ibid. ; application  to  foreign  sovereigns  in  a 
friend's  country,  ibid. ; to  vessels  driven  into  foreign  harbors,  ibid. ; to  residents 
from  Christian  states  in  Oriental  countries,  § 69  ; to  ambassadors,  § 91  et  scq.; 
broader  and  narrower  import  of  the  term,  ibid.  ; implies  immunity  from  foreign 
civil  and  criminal  jurisdiction,  ibid.  ; immunit)"  of  hotel  and  goods,  § 92  ; a cer- 
tain freedom  from  imposts,  ibid. ; liberty  of  worship,  § 94  ; immunity  of  family 
and  train,  limited  as  to  the  latter,  § 95  ; but  no  supreme  power  over  his  suite, 
ibid. 

Extradition,  § 77  ; not  of  strict  obligation,  ibid. ; political  exiles  not  delivered  up  by 
free  countries,  § 79  ; two  methods  of  e.xtradition,  by  treaty,  and  as  cases  calling 
for  it  may  arise,  § 78;  extradition  treaties  of  the  United  States,  ibid.;  formed 
on  no  one  plan,  ibid. ; with  Great  Britain,  ibid. ; cases  of  Napper  Tandy  and 
Arguelles,  ibid.  ; treaties  of  other  nations,  ibid. 

Feud.^lism,  its  influence  on  international  law  usage,  § 8. 

Field,  D.  Dudley,  cited,  § 69  ; his  plan  of  public  arbitration,  § 225. 

Fisheries  on  the  high  sea  free,  § 59  ; questions  as  to,  between  Great  Britain  and 
the  United  States,  ibid.  (See  also  Treaty  of  Washington,  App.  ii.,  1871.)  Coast 
fislieries  of  enemies  not  disturbed  by  some  nations,  § 186. 

Flassan,  his  “ Histoire  dc  hi  Diplomatie  Franfaise,”  §§  88,  104, 109  ; his  “Histoire 
du  Congres  de  Vienne,”  App.  ii.,  under  1815. 

Foelix,  “Droit  International  Prive',’’  §§  70,  74,  75. 

Foreign  judgments.  See  Judgments. 

Foreigners.  See  Aliens. 

Forms  of  politeness  on  the  sea,  § 84. 

Foster,  Sir  Michael,  on  rights  of  ambassadors,  § 96. 

France,  acquisitions  by  Peace  of  Westphalia,  App.  ii.,  under  1648;  renuncia- 
tion by  treaties  of  Utrecht,  under  1713;  abandons  the  Pretender,  under  1697, 
1713;  acquires  Corsica,  under  1768  ; concession  of  to  England,  under  1763; 
treaties  of  consular  and  imperial  France,  from  1795  to  1815  ; joins  the  Holy  Al- 
liance, App.  ii.,  under  1818  ; a party  to  Treaty  of  London  in  1827  ; see  that  l ear  ; 
to  convention  touching  Greece,  App.  ii.,  1832  ; to  treaties  of  Paris  in  1856,  1871, 
App.  ii. ; treaty  with  China,  1858,  ibid.;  treaties  at  Villafranca  and  Zurich, 
1859,  ibid. ; Savoy  and  Nice  ceded  to  France  same  year,  ibid. ; peace  of  Ver- 
sailles with  Germany,  1871,  ibid.;  France  loses  Alsace  and  part  of  Lorraine, 


512 


INDEX. 


ibid. ; Droit  d’Anbaine  in  France,  § 67  ; usages  as  to  foreign  vessels  of  com- 
merce, § 68  ; naturalization  in,  § 70  ; refuses  to  comply  with  English  ceremonial 
of  tlie  sea,  § 8.') ; reprisals,  French  usage  and  law  of,  § 118  ; decision  of  court  af- 
fecting right  of  pacific  blockade,  § 119  ; usages  of  war  in  Cent.  XVI.,  § 134  ; af- 
terwards, §§  135,  138  ; usages  as  to  neutral  trade,  § 189  ; as  to  coast  fisheries, 
§ 186;  as  to  notice  of  blockade,  § 204;  stretclied  the  rules  of  blockade  under 
Na])Oleon,  § 206  ; ancient  ordinances  on  contraband,  § 198  ; treaty  of,  concern- 
ing search  for  slaves,  § 216  ; withdrew  its  consent,  ibid. 

Francis  I.  of  France,  § 104.  Comp.  App.  ii.,  under  1526. 

Frankfort-oii-the-Maiii  annexed  to  Prussia,  App.  ii.,  under  1866. 

Franklin,  B.,  on  evils  of  privateering,  § 128  ; clause  in  treaty  of  1785  with  Prussia, 
drawn  up  by  him,  ibid.;  clause  of  same  treaty  on  penalty  for  contraband,  § 198. 

Full  power,  § 90,  comp.  § 111. 

Gaius,  on  jus  gentium,  § 5. 

Garden  (Comte  de),  his  “ Histoire  de  Traite's,”  App.  i.,  p.  416  ; App.  n.,  passim. 

Germanic  Empire,  by  Peace  of  Westphalia,  App.  ii.,  1848,  2-7  ; dissolved,  ibid., 
1805  (see  under  Peace  of  Presburg)  ; Confederation,  ibid,  (see  Congress  of  Vi- 
enna, 8) ; dissolved,  ibid.,  1866,  see  under  1864  ; ntw  empire,  ibid.,  under  1871. 

Gessner,  L.,  cited,  §§  118,  150,  200,  204,  207. 

Grant,  Sir  W.,  § 198. 

Greece,  ancient,  international  law  of,  § 8 ; not  true  that  it  had  none,  ibid. ; bal- 
ance of  ])Owcr  known  to,  § 45  ; treatment  of  foreigners  iu,  § 67  ; term  used  for 
ambassador,  § 86  ; Athenians  kill  Spartan  ambassadors  to  Persia,  § 97  ; office 
of  proxeni,  § 99;  reprisals  in,  § 118  ; declaration  of  war,  forms  of,  iu,  § 120  ; 
usages  in  war,  §§  133,  134. 

Greece,  modern,  interference  in  behalf  of,  § 51  ; treaties  with  and  relating  to,  Aj)p. 
ii.,  1827,  1863,  1864. 

Grote,  G.,  on  arbitration  in  Greece,  § 225. 

Grotius,  often  referred  to,  as  in  §§  8,  1 1,  12,  20  a,  30 ; begins  an  era  in  interna- 
tional law,  §§  31,  53,  59  ; his  “ Marc  Liberum,”  §§  60,  63,  88,  91  note,  97,  113, 
118,  121,  127,  151;  on  postliminy  ajiplicd  to  prisoners  escaping  in  a neutral 
port,  § 153  ; on  temporary  conquest  in  war,  §§  157,  163;  is  brief  on  neutrality, 
§§  176,  196,  205,  App.  i.,  p.  417. 

Guano  Islands,  unoccupied,  law  of  tlic  United  States  concerning,  § 55. 

Guaranty  and  treaties  of  guaranty,  § 109  ; nature  and  objects,  ibid. ; when  intro- 
duced, ibid. ; what  they  imply,  ibid. ; how  they  differ  from  sureties,  ibid. 

Gustavus  Adolphus,  on  rank  of  states,  § 52. 

Guidekens,  English  amba.ssador  at  Stockholm,  case  of,  § 92. 

Gyllenborg,  Swedish  ambassador,  case  of,  § 97. 

Hale,  Sir  M.,  on  rights  of  ambassadors,  § 96. 

Hamburg  and  Bremen,  resolution  of  chambers  of  commerce  of,  on  freedom  of 
private  property  at  sea,  § 147,  note. 

Hamilton,  Alexander,  § 124,  text  and  note. 

Hanover,  annexed  to  Prussia,  App.  ii.,  under  1866. 

Hanseatic  League,  see  laws  of,  App.  i.,  p 414. 

Hare  (E.  F.),  on  postliminy,  § 151. 


INDEX. 


613 


Hartenstein,  his  explanation  ot  jus  natiirale  as  nsed  by  Grotiiis,  § II,  note. 

Hautefeuille  cited,  § 118,  note;  § 119  ; on  ran.som  of  neutral  ships,  § 150;  on  pi- 
racy, § 144 ; refuted,  § 168  ; on  neutral  officers  going-  into  tlie  service  of  a bellig- 
erenr,  § 173;  on  carrying  despatches,  § 199;  on  coasting  and  colonial  trade  in 
war,  § 201  ; opposes  occa.sional  contraband,  § 196. 

Heffler,  often  cited,  as  §§  6,  .52,  5.3,63,  74,  91,95,  100,  119,  133,  136  note,  153,  157, 
169,  171,  172,  196;  admits  pacific  blockade,  § 119;  also  cited,  § 204. 

Hegel,  C.,  “ Stadteverfass.  v.  Italien,”  § 99. 

Hesse  Cassel  annexed  to  Prussia,  App.  ii.,  under  1866. 

Histoi'icus,  letters  of,  cited,  on  acknowledging  new  states,  § 41  ; on  right  of  visit, 
§ 219. 

Holland.  See  Dutch  Kepnhlic. 

Holstein,  affairs  of,  from  1848  to  1864.  See  App.  ii.,  under  1864. 

Hostage.s,  to  confirm  treaties  in  use  as  l.atc  as  1748,  § 1 10;  the  condition  and  treat- 
ment of,  ibid. ; given  to  confirm  ransom  contracts,  § 150  ; may  sue  if  contract  is 
broken,  in  their  own  courts,  ibid. ; case  of  recapture  of  at  sea,  ibid. 

Hiibner,  Martin,  § 191. 

Hiillman,  “ Stadtewesen,”  etc.,  § 88. 

Hulsemann,  Mr.,  §§  80;  82. 

Hurd,  J.  C.,  his  “ Law  of  Fi  eedom  and  Bondage  ” cited,  §§  2,  9. 

Huss,  John,  the  safe  conduct  given  to  him  broken,  § 8. 

IxDEPEXDiixcE  of  a State,  what  ? § 37. 

Intercourse,  is  there  a right  of  ? § 25,  § 63  et  scq. ; what  a state  may  not  do,  a.s  it 
respects  intercourse,  ibid  ; what  it  may  do,  § 64;  Christian  stale.s  now  .some- 
times force  other  states  into  intercour.se,  ibid.  ; agents  of  intereotir.-^e,  §§  81 , 100. 

Interference  in  affitirs  of  other  states  generally  unlawful,  § 43  ; for  the  balance  of 
power,  § 44 ; to  prevent  revolutions  not  a valid  reason  for  interference,  § 46  ; 
the  M)nr  e Doctrine,  § 48;  interference  in  the  Belgic  revolution,  § 50;  on 
the  >core  of  religion  and  humanity,  § 51. 

International  law  has  the  same  foundation  as  state  law,  §§  1, 2 ; its  meaning  in  an 
abstract  sense,  § 3 ; in  a more  limited  sense,  § 4 ; actual  international  law,  what  7 
§ 5 ; originated  in  Christian  states,  why  7 § 7 ; is  extending  beyond  Christen- 
dom, § 5 ; not  ob.served  toward  savages,  ibid. ; rules  of  intercourse  between 
two  or  a few  states,  no  p.art  of  it,  ibid.;  genesis  and  voluntarinc.ss  of,  § 6;  of 
later  growth  than  state  law,  ibid. ; in  Greece,  Koine,  and  niediatval  Europe, 
quite  imperfect,  § 8;  took  a religious  form  among  the  ancients,  ibid.;  positive 
method  in,  its  deficiencies,  § 13;  not  resolvable  into  contract,  § 14;  its  jural, 
§ 15  ; and  moral  grounds,  § 16  ; rights  of  nations,  §§  17-21  ; duties  and  claims, 
§§  22-25  ; divisions  of  international  law,  §§  26,  27  ; custom  and  free  consent, 
sources  of,  § 28  ; adopted  by  municipal  law,  § 29;  aids  for  knowing  what  it  is, 
§ 30;  progress  of,  §§  31,  32;  uncertainty  and  want  of  authority  of,  §§  33,  222; 
historv  of,  its  importance,  § 34;  method  in  this  work,  § 35;  international  law 
regards  all  governments  as  legitimate,  § 38;  know's  only  governments  de  fncto, 
§ 40  ; exam])les  of  recognition  of  new  states,  ibid. ; forbids  assistance  to  revolted 
provinces,  § 42 ; but  allows  assistance  to  states  ag.ainst  revolt,  ibid. ; how 
far  interference  is  allowed  by  international  law,  § 43-51.  (See  Interference, 
Balance  of  Power,  Monroe  Doctrine,  llcligioti.  Congress.)  Property  what,  and 
33 


514 


INDEX. 


how  acquired,  according  to  international  law?  §§  53-55.  Territory,  what? 
§ 56;  international  law  as  to  coasts,  seas,  bays,  rivers,  §§  57-62;  as  to  inter- 
course, §§  63-79;  as  to  comity  and  courtesy,  §§  81-85;  as  to  agents  of  inter- 
course, §§  86-100  (sec  Ambassadors,  Consuls)  ; as  to  right  of  contract  and 
treaties,  §§  101-113  (see  Treaty);  as  to  right  of  self-protoetion  and  redress, 
or  war,  and  the  laws  and  usages  of  war,  §§  114-142  ; as  to  pirates,  the  slave- 
trade,  and  civil  wars,  g§  143-146  ; as  to  capture,  recapture,  and  occupation, 
§§  147-153  ; as  to  truce  and  peace,  §§  154-162  ; as  to  obligations  and  rights  of  neu- 
tral states,  §§  163-181  ; as  to  rights  and  liabilities  of  neutral  trade,  §§  182-191 ; 
especially  as  to  neutral  properly  in  armed  enemy’s  vessels,  § 192  ; as  to  contra- 
band, occasional  contraband  and  preemption,  and  trade  with  the  enemy  opened 
in  war,  §§  193-201;  as  to  blockade,  §§  202-206;  as  to  continuous  voyages, 
§ 207;  to  the  right  of  search  and  to  cohvoy,  §§  20S-214;  as  to  search  of 
suspected  slavers  and  disjvutes  concerning  that  point,  § 220.  Defects  and  nar- 
row limits  of  international  law,  §§  222-223;  methods  of  preventing  or  of  peace- 
fully settling  disputes,  §§  224-227.  Sanctions,  prospects,  importance  of  the 
study  of  international  law,  §§  229-231. 

Interpretation  of  treaties,  § 113  ; repugnant  and  conflicting  clauses,  ibid. 

Inviolabilit}’-  of  ambassadors,  § 91  ; except  in  extreme  cases,  ibid.;  a right  for- 
merly qualified  by  English  jurists,  § 96. 

Ionian  Islands,  App.  ii.,  under  1807,  p.  463;  1815;  1864. 

Japan  grants  exterritorial  privileges  to  foreigners,  § 69. 

Jews,  their  usages  in  war,  § 134. 

John,  King  of  France,  case  of,  § 104. 

Jus  (jentium,  § 9;  jus  inter  gentes,  ibid. ; naturce  or  naturale,  § 10;  definition  of  by 
Ulpian,  ibid. ; by  Grotins,  § 11  ; voluntarium,  as  defined  by  Grotius,  ibid. ; tran- 
sitiis  or  passagii  innoxii,  § 63  ; dttractus,  § 65  ; albinagii,  § 67  ; legatorum  or 
legal ionum,  § 86  ; quarteriorum,  § 92  ; postUminii , § 151. 

Kaltenborn,  Carl  von,  cited,  § 166.  (Comp.,  for  his  works,  App.  i.,  p.  426,  and 
note,  u.  s.) 

Kant,  on  perpetual  peace,  § 226. 

Kent,  Chancellor,  often  cited,  as  in  §§  29,  60,  96, 100,  103,  114,  123,  128,  129,  144, 
146,  148,  176,  191,  192,  196,  201. 

Kliiber,  “ Europaisches  Volckerrecht  ” (ed.  of  1851),  cited,  §§  2,  90,  91,  92,  94, 
98,  106,  133,  191,  196. 

Koszta,  M.,  points  of  case  of  considered,  80. 

Language  in  which  treaties  are  written,  § 158,  end. 

Lansdowne,  Lord,  on  recognition  of  new  states,  § 41. 

Lauenbnrg,  afftvirs  of,  App.  ii.,  under  1848,  1852,  1864  (see  under  1864);  be- 
comes Prussian  by  Treaty  of  Gastein,  1865,  ibid. 

Laurent,  § 34. 

Lawrence,  St.,  the,  free  to  the  United  States  by  the  Eeciprocity  Treaty,  § 62 ; by 
the  Treaty  of  Washington,  from  latitude  45°,  see  App.  ii.,  1871. 

Lawrence,  W.  B.,  comment,  on  Wheaton,  cited,  §§  145,  180;  on  the  affairs  of 
Schleswig-Holstein,  App.  ii.,  under  1866. 

League  at  Schmalkalden,  App.  ii.,  1530. 


INDEX. 


515 


Legates  a and  de  latere,  etc.,  § 98,  note. 

Legitimacy  pertains  to  states  under  all  political  forms,  § 40. 

Leslie,  Bishop  of  Ross,  §§  90,  96. 

Lex  domicilii,  its  effect,  § 74  (sec  Domicil). 

Liability  to  capture  of  goods  and  vessels  at  sea,  § 184  et  seq. 

Licenses  to  trade,  § 15.5;  English  rules  concerning,  ibid. 

Lieber,  Dr.  E.,  § 16,  note  ; § 130,  note  ; § 142. 

Lieger  ambassadors,  the  term  explained,  § 88,  note. 

Limburg  and  Luxemburg,  relations  of  by  treaty  of  1867,  § 163. 

Livy,  cited,  §§  1.34,  151,  note. 

Lowry  on  the  jirevention  of  hostile  expeditions  by  our  government,  § 169. 

Loyal  persons  in  a revolted  province,  property  of,  hostile,  § 183. 

Liibeck,  its  treatment  of  a vessel  fleeing  into  its  waters,  § 166. 

Lucchesi-Palli,  on  blockade,  § 202. 

Lushington,  Dr.,  on  effective  blockade,  § 202. 

Mabcy,  the  Abbe  de,  cited  in  notes  to  §§  21,  109,  110. 

Malmesbury,  Earl  of,  on  search,  § 219. 

Manning,  W.  Oke,  his  Commentaries  (ed.  1,  1839;  ed.  2,  1875),  §§  124,  149,  172, 
189,  191,  194,  and  frequently  in  the  following  sections  also,  §§  21 1,  221. 

Marcian,  the  Emperor,  law  of,  § 193. 

Marcy,  W.  L.,  on  Koszta’s  case,  § 80 ; on  the  declaration  of  1856,  §§  128,  191. 

Maritime  laws  of  mediaeval  Europe,  Ajip.  i.,  p.  414. 

M.arquardsen,  Prof,  at  Erlangen,  on  the  Trent  case,  § 199. 

Marque,  letters  of,  § 127. 

Martens,  CIi.  de,  comp.  §§  415, 426  it's,  427  ; his  “ Causes  Ce'lebres,  ’ App.  i.,  p.  415  ; 
his  “ Guide  Diplomatique,”  § 98  ; his  part  in  the  “ Nouv.  Recucil,”  etc.,  p.  154. 

Martens,  G.  E.  de,  his  “Precis  du  Droit  dcs  Gens,”  often  cited  (in  the  fourth  edi- 
tion), as  in  § 65,  note,  on  emigration,  §§  91,  123  ; on  forms  of  treaties  of  peace, 
§ 158;  on  the  language  used  in  treaties,  ibid.;  on  freedom  of  neutiul  sliips, 
§ 191  ; on  occasional  contraband,  § 196;  on  penalty  for  breaking  blockade, 
§ 205.  Ills  essay  on  “ Armateurs,”  § 127.  His  “ Merkwurdige  Erzahlungen,” 
§ 78,  p.  116.  His  “ Rccueil,”  very  ol'ten  cited  in  App.  ii.  Comp.,  for  him  and 
his  continuators  in  this  work,  Ajip.  i.,  p.  415. 

Mediation  recommended  at  Treaty  of  Paris  in  1856,  § 224. 

Mendoza,  Spanish  ambassador  in  England,  case  of,  § 96. 

Middle  Ages,  international  law  in,  § 8 ; treatment  of  foreigners  in,  § 67  ; usages  of 
war  in,  §§  134,  135. 

Milan  decree,  § 206  (p.  322). 

Mississippi,  the,  negotiations  concerning  the  freedom  of  navigating,  § 62. 

Mohammedan  nations,  long  shut  out  of  Christian  international  law,  § 7 ; alliances 
with,  long  disapproved,  § 8. 

Mold,  R.  von,  §§  20  h,  73,  76.  Comp.  App.  i.,  ])p.  413,  416. 

Mole',  Ct.,  on  notification  of  blockade,  § 204. 

Mollicn  on  confiscating  shares  of  public  debt  held  by  a hostile  state,  § 124. 

Monroe,  President,  on  recognizing  new  revolutionary  communities  as  states, 
§ 180. 

Monroe  Doctrine,  what  1 § 48 ; voted  against  by  Congress,  ibid. ; Mr.  Adams’  ex- 


516 


IXDEX. 


planation  of  it,  ibid. ; revived  l)y  Mr.  Polk,  ibid.;  opposed  by  Mr.  Calhoun  in  its 
new  .^bape,  il,id. ; is  no  fnlly  recognized  part  of  our  .system,  ibid. 

Moral  relations  of  states.  ISee  Diitie-i. 

Moser,  J.  J.,  § 191  ; an  ambassador’s  importations  of  goods,  § 93.  Comp.  App.  i., 
p.  421. 

Napieu,  Sir  W.,  his  history  of  the  Peninsular  War,  §§  130,  135,  138. 

Napoleon  I.,  § 124;  his  vast  requisitions  in  war,  § 133  ; his  seizure  of  works  of 
art  in  foreign  countries,  § 137 ; his  paper  blockades,  § 20G. 

Naturalizaliou,  what  1 § 70  ; inchoate,  ibid. ; conflict  of  laws  growing  out  of  differ- 
ent rules  of  naturalization,  ibid. ; modern  rules  of,  ibid.,  pp.  100-103. 

Navigation,  freedom  of,  § 59  ; viare  clausum  of  Sclden,  and  m.  liberum  of  Grotius, 
ibid. ; Portuguese  and  llussian  exclusive  claims,  ibid.  ; Danish  straits  now  free, 
§ 61  ; Black  Sea  free,  etc.,  ibid. ; river  n.avigation,  § 62  ; act  of  Congress  of 
Vienna  on,  ibid.;  the  Scheldt  free,  ibid. ; Danube;  Mississippi ; St.  Lawrence 
partially ; La  Plata,  etc.,  ibid. 

Neutrality  and  neutrals,  §§  16.3-181;  doctrine  of  chiefly  modern,  § 163;  impor- 
tance of,  ibid.  ; neutrals,  who  ? ibid.;  gradations  of  neutrality,  ibid. ; qualified 
neutrality  differs  from'  alliance,  ibid.;  permanent,  or  ncutraliza'iun  of  sea  or 
territory,  ibid. ; armed,  ibid,  (see,  also.  Armed  Neutrality)  ; obligations  of  neu- 
trals, § 164;  must  be  impartial,  ibid.;  but  cannot  be  if  they  aid  both  parties, 
§ 165  ; duty  of  neutrals  to  be  humane  to  both  parlies,  § 166  ; especially  to  grant 
asylum  to  both,  ibid. ; ought  to  disarm  fugitive  troo]:s,  ibid. ; treatment  of  armed 
vessels  fleeing  into  neutral  harbors,  ibid. ; case  of  the  Schleswig  vessel  atLiibcck, 
ibid. ; may  admit  vessels  of  war  for  peaceful  purposes,  § 167  ; maj',  but  are  not 
bound  to,  ojicu  their  ports  fur  prizes,  ibid. ; obligations  of  United  States,  under 
treaties,  to  Fr.anee  and  England,  § 168;  Hautefeuille’s  opinion  discus.sed,  ibid.; 
ina}'  not  lend  money  to  a belligerent,  nor  allow  hostile  acts  in  their  territories, 
§ 169  ; nor  allow  their  courts  to  decide  on  the  validity  of  belligerent  captures, 
ibid. ; nor  purchase  a prize  or  conquest  made  by  a belligerent,  ibid  ; may  not 
allow' private  per.sons  to  build  or  augment  or  repair  vessels  for  a belligeieut, 
ibid.;  case  of  the  Alabama,  § 170;  doubtful  eases  : allow'ing  the  passage  of 
troops,  § 171  ; or  furnishing  troops,  § 172  ; what  a neutral’s  subjects  may  not 
do,  § 173  ; rights  of  neutrals,  as  against  belligerents,  § 174  ; ease  of  the  Caro- 
line, ibid  ; the  Chesapeake,  ibid.;  of  the  Florida,  Fssex,  Levant,  General  Arm- 
strong, ibid  ; of  French  vessels  in  the  Bay  of  Lagos,  ibid.;  cruisers  may  not 
chase  a vessel  within  or  across  neutral  waters,  ibid. ; the  neutral’s  remedy  in 
such  cases,  ibid  ; respects  due  by  belligerents  to  neutral’s  flag,  § 175;  to  their 
ambassadors,  ibid.;  nations  bound  to  secure  by  law  their  neutrality,  §176; 
neutrality'  laws  of  the  United  States,  ibid. ; British  Foreign  Enlistment  Act  of 
1870,  § 177;  its  principal  provisions,  ibid. ; case  of  British  ambassador  iu  the 
United  States,  in  the  Crimean  war,  § 178;  relations  of  neutrals  to  parties  in 
a civil  war,  § 179  ; recognition  of  belligerency,  § 180  (pp.  300-304);  right  of  a 
foreign  state  to  trade  with  revolters,  § 181;  right  of  blocking  up  ])orts  as  a 
w'ar-right,  ibid. 

Neutral  trade,  or  neutral  ships  and  goods  on  the  sea,  their  rights  and  liabilities, 
§ 182-201.  Importance  of  this  title,  § 182.  Neutrals  and  neutral  property, 
who  and  what  iu  war  1 § 183  ; liability  to  capture,  its  general  principles,  § 184; 


INDEX. 


517 


two  rules  of  liability,  from  character  of  goods  and  of  vessels,  § 185  ; how  the 
rules  have  shaped  themselves,  ibid. ; former  treatment  of  vessels  conveying  hos- 
tile goods,  § 186;  treatment  of  neutral  goods  on  enemy’s  vessels  as  to  freight, 
ibid. ; coast-fisheries  of  enemies  allowed  by  some  nations  to  go  on,  ibid. ; justice 
of  rules  respecting  neutral  trade  considered,  §187;  former  practice  in  regard 
to  neutral  trade,  § 188  ; historical  illustrations,  § 189 ; declaration  made  at  the 
Peace  of  Paris,  in  1856,  § 190;  attitude  of  the  United  States  touching  them, 
ibid. ; true  policy  of  the  United  States  in  this  respect,  ibid.,  note;  opinions  of 
publici'ts,  § 191;  neutral  goods  in  armed  enemy’s  vessels,  § 192,  and  note;  con- 
traband, see  that  article.  Trade  closed  in  peace,  but  open  in  war,  §§  200,  201. 

New  York  Peace  Society,  petition  of,  to  Congress,  and  answer,  § 226. 

“ North  American  Review,”  on  the  Monroe  Doctrine,  § 48 ; on  the  Sound  tolls 
of  Denmark,  § 61. 

Norway,  § 38,  comp.  § 108,  App.  ii.,  1814  (p.  468,  under  6). 

Nymwegen,  or  Nimeguen,  Peace  of,  § 95  ; App.  ii.,  1678. 

Obligations  of  states  to  other  states  survive  changes  of  governments,  § 38. 

Occupation  of  territory  by  a conqueror,  effect  of,  § 153  ; reconquest,  effect  of, 
ibid. 

Oleron,  Jugements  de,  App.  i.,  p.  414. 

Ompteda,  his  literature  of  international  law,  in  German,  App.  i.,  p.  413. 

Orders  in  Council,  British,  in  1807,  1809,  § 206  ; in  1861,  closing  ports  to  prizes, 
§ 168. 

Ortolan,  Theod.,  bis  “ Diplomatic  de  la  Mer  ” cited,  as  in  §§  50,  84,  85,  167,  186, 
191,  196,  202,  203,  204. 

Osenbriiggen,  “De  Jure  Belli  et  Pacis  Romanorum,”  cited,  §§  8,  118. 

Palatine  library  carried  away  in  'Phirty  Years’  War,  § 137. 

Pardessus,  “ Collection  des  Lois  Maritimes,”  §§  99,  129  note,  189  note.  Comp. 
App.  i.,  p.  414.  His  “ Droit  Commercial”  cited,  § 100. 

Paris,  Treaty  of,  in  1856,  § 62  and  note;  declaration  attached  to,  §§  128,  190, 
202. 

Paschal  II.,  Pope,  ca.se  of,  § 104. 

Passports.  See  Safe  Conducts. 

Paulus  in  the  Digest,  § 144,  § 151. 

Peace  of  Crespy,  App.  ii.,  1544;  of  Augsburg,  1555,  ibid. ; of  Westphalia,  1648, 
ibid.;  Liibeck  (see  Peace  of  Westphalia,  p.  432) ; Prague,  ibid.  (p.  432)  ; Peace 
of  the  Pyrenees,  App.  ii.,  1659  ; of  Nymwegen,  1678,  1679,  ibid. ; Ryswick,  ibid., 
1697  ; Carlowitz,  ibid.,  1699;  Utrecht,  ibid.,  1713;  Rastadt-Baden,  ibid.,  1714; 
Passarowitz,  ibid.,  1718;  Nystadt,  ibid.,  Brestlau-Berlin,  ibid.,  1742;  preliminary 
and  definitive  treaty  of  peace  of  Aix-la-Chapelle,  ibid.,  1748;  of  Paris,  ibid., 
1763  ; Hubertsburg,  ibid.,  1763  ; Kutschuk-Kainardji,  ibid.,  1774;  Teschen, 
ibid.,  1779  ; Paris,  ibid.,  1781-1783  ; Versailles,  ibid.,  1783  ; Jassy,  ibid.,  1792; 
Basel  (Spain  and  France),  1795  ; Basel  (Prussia  and  France),  ibid.,  1796  ; Paris, 
(Sardinia  and  France),  ibid.,  1797  ; Leoben,  Campo  Formio,  ibid.,  1797  ; Amiens, 
ibid.,  1802;  Pre.sburg,  ibid.,  1805  ; Tilsit,  ibid.,  1807 ; of  Sweden  with  Russia, 
ibid.,  1809;  of  Schdnbrunn  or  Vienna,  ibid.,  1809  ; of  Bucharest,  ibid.,  1812; 
Paris,  first  Peace  of,  ibid.,  1814 ; Vienna,  see  Congress,  Treaties;  Paris,  second 


518 


INDEX. 


Peace  of,  ibid.,  181.5  ; Peace  ofParis  in  1856,  ibid,  (see  Paris,  Treaty  of);  of  Villa- 
franca,  Zurich,  ibid , 1859  ; of  Berlin,  between  Denmark  and  the  German  Con- 
federation, 1850,  p.  488  ; of  Vienna,  of  Denmark  with  Austria  and  Prussia,  ibid., 
1864  ; of  Prague,  between  Prussia  and  Austria,  ibid.,  1866  ; of  Versailles,  pre- 
liminary, February  26,  definitive.  May  10, 1871,  ibid.;  of  San  Stefano,  prelimi- 
nary between  Russia  and  Turkey,  February  19,  March  .3,  1878 ; definitive  peace 
of  the  six  Powers  signatory  to  the  Treaty  of  Paris,  1856,  July  13,  1878. 

Peace,  how  different  from  truce,  § 158  ; not  always  perpetual,  ibid. ; separate  and 
secret  articles  of,  ibid.  ; principals  and  accessories  to,  ibid.  ; the  language  gener- 
ally used  in  treaties,  ibid. ; restrictions  on  the  power  to  make  a peace,  § 159  ; 
allies  generally  obligated  not  to  separate  their  interests,  ibid. ; effeets  of  treaties 
of  peace,  § 160;  on  private  rights,  ibid. ; on  previous  treaties,  — do  they  survive 
war  ? ibid. ; the  answer  depends  on  the  subject  matter  of  the  previous  treaties, 
ibid. ; opinions  of  different  writers,  ibid. ; effects  of,  on  causes  for  which  war  was 
undertaken,  ibid.,  § 161  ; particular  points  considered,  ibid. ; when  does  peace 
begin?  §162;  effect  of  on  captures  made  after  or  without  knowledge  of  the 
peace, ibid. 

Peltier’s  ca.se,  charged  with  libeling  a foreign  sovereign,  § 82,  note. 

Phillimore  cited,  §§  24,  37,  71,  78,  82,  118,  161,  173,  193,  note,  on  selling  articles 
used  for  war  to  belligerents  within  the  neutral’s  territory,  animadverting  on 
Judge  Story,  §§  194,  196,  199,  201. 

Piedmont.  See  Sardinia. 

Pinheiro-Ferreira,  on  De  Martens,  § 118. 

Pirates  and  piracy,  definition,  § 144  ; one  or  several  nations  may  enlarge  the  def- 
inition, but  cannot  ajtply  it  to  international  law,  ibid. ; jurisdiction  over  pirates, 
ibid. ; the  Barbary  powers  are  not  now  sueh,  ibid,  (comp.,  also,  § 36) ; pirates 
form  no  state,  § 36  ; slave-trading  not  piracy  by  international  law,  § 146  ; are 
crews  of  rebels  pirates  ? § 145 ; efforts  to  make  .slave-trade  piracy  internationally, 
§ 217  ; a vessel  suspected  of  piracy  may  be  approached  and  its  character  ascer- 
tained, § 213. 

Plata,  La,  the,  free  navigation  of,  § 62. 

Pledges  to  confirm  treaties,  § 110. 

Poland,  first  partition  of,  App.  ii.,  1772  ; second  and  third,  ibid.,  1793,  1795. 

Political  refugees,  § 79. 

Polk,  President,  his  proposition  extending  the  Monroe  Doctrine,  § 48. 

Pope,  the,  relation  of,  to  international  law  in  mediteval  Europe,  § 8 ; dispensing 
power,  ibid. ; grants  of  to  Spain  and  Portugal,  § 55  ; rank  in  European  ceremo- 
nial, § 52  ; ambassadors  of,  § 98 ; cessions  at  Treaty  of  Tolentino,  App.  ii., 
1797  ; Roman  state  made  in  1870  a part  of  the  kingdom  of  Italy,  App.  ii., 
1859. 

Portalis,  Count,  on  the  usages  of  w^ar,  § 136,  note. 

Portugal,  independent  of  Spain,  App.  ii.,  1668  ; treaty  of  with  Great  Britain  for 
the  search  of  suspected  slavers,  § 216. 

Postliminy  not  applied  to  recapture  from  pirates,  § 144  ; what  by  Roman  law  ? 
§ 151  ; wherein  modern  postliminy  differs  from  Roman,  ibid. ; must  be  extended 
to  neutrals,  ibid. ; rule  of,  extended  to  reconquest,  § 153. 

Preemption,  a compromise  between  belligerents  and  neutrals,  § 197  ; English  prac- 
tice of,  ibid.  ; treaty  of  United  States  admitting  the  rule,  ibid. 


INDEX. 


519 


Principalities,  Danubian.  See  App.  ii.,  under  peace  of  Kutschuk-Kainardji, 
1774  ; of  Bucharest,  1812  ; Ackerman,  convention  of,  182G  ; treaty  of  Adriano- 
ple,  1829  ; of  Paris  in  1856  (at  large) ; of  San  Stefaiioand  Berlin,  1878.  Comp. 
§§  37,  90. 

Prisoners  of  war,  present  treatment  of,  § 134,  end ; escaping  into  neutral  territory, 
§ 151.  See  also  Rome,  War. 

Privateers,  §§  127-1 29  ; right  to  use  them  admitted  by  all,  ibid.;  advantages  of, 
especially  to  a state  with  a small  navy,  ibid. ; great  evils  of,  § 128 ; testimony  as 
to  these  evils,  especially  of  American  publicists,  ibid. ; abolislicd  by  declaration 
of  Paris  in  1856,  ibid. ; why  the  United  States  declined  to  become  a party  to  the 
declaration,  ibid.;  Mr.  Seward’s  offer  to  do  this,  ibid.;  why  declined,  ibid. ; 
restrictions  on  privateering  to  prevent  its  evils,  § 129. 

Private  international  law,  what  it  is,  § 73  ; its  growth,  ihid. ; its  rules  as  to  per- 
sonal capacity,  § 74  ; as  to  foreign  judgments,  § 75  ; writers  on,  App.  ii.,  p.  424. 

Prizes  at  sea,  when  the  captors’  proparty,  § 148;  full  title  given  to  captor  by  a 
court,  ibid. 

Property  of  states,  whatl  § 53;  how  acquired,  § 54;  how  treated  in  war,  § 137. 

Property  in  an  enemy’s  country,  § 124. 

Provisions,  when  contraband,  §§  194  (5),  195,  et  seq. 

Proxenus  in  Greece,  § 99. 

Prussia  a kingdom,  App.  ii.,  1713;  acquisitions  by  treaties  of  Berlin  and  Dresden, 
1742  and  1745  (under  1742)  ; at  Peace  of  Hiibertsburg,  1763 ; a party  to  the 
partitions  of  Poland,  App.  ii.,  1772,  1793  ; and  to  the  Peace  of  Tcschen,  1778 ; 
treaties,  etc.,  with  Napoleon  I.,  at  Basel,  App.  ii.,  1795 ; at  Tilsit,  1807 ; treaties 
with  other  allies  against  France,  App.  ii.,  pp.  468,  469;  with  allies  after  down- 
fall of  Napoleon,  App.  ii.,  1814,  1815;  at  treaties  of  1840,  1841,  1856,  App. 
ii.,  under  those  years ; treaties  and  affairs  touching  Schleswig-Holstein  and 
Denmark,  until  convention  of  Gastein,  in  1865,  A])p.  ii.,  under  the  year  1864  ; 
treaties  with  Austria,  in  1866,  App.  ii , under  the  year;  treaty  with  Franco,  in 
1871,  App.  ii.,  1871  ; King  of  Prussia  becomes  Emperor  of  Germany,  ibid  , ibid. 
Naturalization  in,  § 70;  treaty  of  North  German  Confederation  with  the  United 
States  touching,  ibid.;  treaty  of  1785  with  the  United  States,  §§  128,  198  ; 
claims  of  as  it  regards  neutral  trade,  § 191. 

Puffendorf,  Samuel,  §§  12,  31,  157  ; App.  i.,  p.  414. 

Quintuple  treaty  (of  London,  1841 ),  provisions  of,  regarding  search  for  slavers, 
§ 216. 

Rachel,  Samuel,  App.  i.,  p.  414. 

Rank  of  states.  See  Equality,  Ambassadors. 

Ransom  in  war,  of  prisoners,  § 134;  of  captured  vessels,  § 150;  its  conditions, 
ibid. ; hostages  to  secure  a ransom,  ibid. ; not  favored  by  the  laws  of  a number 
of  states,  ibid. ; Hautefeuille’s  objections  to  ransom  of  neutral  vessels,  ibid. 

Rayneval,  § 56  ; App.  i.,  p.  421. 

Recapture.  See  Postliminy. 

Recognition  of  a new  state,  when  lawful,  §§  40,  41. 

Reconquests  and  temporary  conquests,  § 153.  Comp.  § 142. 

Reddie,  J.,  §§  9,  187  note. 


520 


INDEX. 


Reiclistleputation,  report  of,  App.  ii.,  1803. 

Religion,  iiiterferenco  on  account  of,  § 51. 

Remonstrances  of  states  against  conduct  of  others,  § 82.  Comp.  § 225. 

Reprisals,  § 118;  wlien  resorted  to?  ibid.;  how  far  just  ? ibid.;  known  to  the 
Greeks,  but  not  to  the  Romans,  ibid. ; and  to  mediteval  Europe,  ibid. ; general 
and  special,  ibid. ; modern,  ibid.,  end. 

Reputation,  right  of,  § 18 ; reputation  of  a .state,  § 82. 

Requisitions  or  contributiun.'i  in  war,  tliose  of  Napoleon  I.,  § 135  ; in  general, 
§ 136;  Vattel  on,  ibid.  ; requisitions  on  Paris,  § 137. 

Restitution,  edict  of,  before  the  Thirty  Years’  War,  App.  i.,  pp.  431,  432. 

Retaliation  in  war,  its  limits,  § 132. 

Retorsion,  § 118. 

Revolutions,  interference  to  prevent,  § 46 ; history  of  such  interference,  § 47. 

Rewards  given  to  captors  by  English  law,  § 152.  Comp.  Salvage. 

Rheinbiind  or  Confederation  of  the  Rhine.  App.  ii.,  p.  180. 

Rights  and  obligations  of  states,  § 17  ; right  of  reputation,  § 18  ; of  redress,  § 19 ; 
of  puni.shing  other  states,  is  there  any  1 § 20,  a ; of  conquest,  § 21 ; of  intercourse, 
is  there  any  ? §§  25,  63  ; of  asylum,  § 65  ; of  innocent  passage,  ibid. ; of  emigra- 
tion, ibid. ; rights  over  aliens,  § 66  ; right  of  contract  or  treaty,  § 101  et  seg.  ; 
of  war,  § 116  ; rights  of  neutrals,  § 163  ct  seq. 

Rln9on  and  Frego/.e,  French  amba.ssadors,  their  case,  § 97. 

Rivers,  freedom  of  navigation  of,  § 62  ; rule  of  Congress  of  Vienna  concerning, 
ibid.;  history  of  provisions  touching  a number  of  rivers,  ibid.  See  Danube, 
Rhine,  etc. 

Roberjot  and  Bonnier,  French  ministers,  their  murder,  § 96  note. 

Rochau,  V.,  his  history  of  France  cited,  § 137. 

Rome,  international  law  of,  § 8 ; treatment  of  foreigners  in,  § 67  ; practiced  no 
reiirisals,  § 118  ; jus  f etude  of,  § 120  ; cruel  usages  in  wars,  § 134  ; e.speeially 
towards  non-combatants,  § 135  ; usages  in  sack  and  sieges,  § 138  ; its  jus  post- 
limiint,  § 151  ; truce  witli  the  Vejentes,  § 157,  note. 

Rules  of  1856,  § 202.  Comp.  § 100. 

Russia,  gains  of  by  Peace  of  Nystadt,  App.  ii.,  1721  ; by  jtartitions  of  Poland,  1772, 
1793,  ibid.;  guarantees  the  Peace  of  Teschen,  § 109;  Peace  of  Kutschuk- 
Kainardji  with  Turkey,  ibid.,  1774  ; remarks  on  the  interpretation  of  that  peace, 
ibid.,  pp.  450,  451;  Peace  of  Jassy,  1792,  ibid.;  of  Tilsit,  1807;  secret  arti- 
cles, p.  463  ; peace  with  Sweden  at  Friedrichshamm,  in  1809,  ibid.  ; with  Tur- 
key at  Bucharest,  1812,  ibid. ; Russia’s  part  in  the  treaties  of  1814,  1815,  ibid.  ; 
receives  most  of  the  Grand  Duchy,  of  Warsaw,  as  Kingdom  of  Poland,  p.  471  ; 
gains  a kind  of  protectorate  over  the  principalities  on  the  Danube,  as  well  as  ter- 
ritory, by  convention  of  Ackerman,  1826,  and  Peace  of  Adrianoi)le,  1829,  ibid.  ; 
its  part  in  the  Treaty  of  Paris  of  1856,  the  new  organization  of  Moldavia  and 
Wallachia,  and  the  alteration  of  the  treaty  in  1871,  ibid.  ; its  separate  Treaty  of 
San  Stefano,  and  part  in  the  Treaty  of  Berlin,  1878,  ibid. ; participation  of  Rus- 
sia in  the  armed  neutralities,  §§  189,  209  ; in  the  Holy  Alliance  and  the  meas- 
ures afterwards,  § 46  ; in  the  affairs  of  Greece,  § 51,  App.  ii.,  and  treaty  at 
London,  1827 ; its  law  of  naturalization,  § 66  ; claim  to  the  Pacific,  above  51st 
degree  north  latitude,  § 59  ; attempts  to  humanize  the  rules  of  war,  § 142. 


INDEX. 


521 


Sa,  case  of,  § 96. 

Safe  conduct  or  safeguard,  § 155. 

Salvage,  § 152. 

Sanctions  of  international  law,  § 223. 

Sardinia,  Kingdom  of.  (For  Piedmont,  Savoy,  see  Treaty  of  Cherasco,  App.  ii.,  1 631 ; 
Treaty  of  the  Pyrenees,  ibid.,  1659;  of  Vienna,  1689,  under  Treaty  of  Ryswick, 
p.  439,  and  of  Utrecht.)  Duke  of  Savoy  made  King  of  Sicily  by  the  latter 
treaty,  p.  444  ; becomes  King  of  Sardinia  by  exchange  of  Sardinia  with  Sicily 
ill  1721  ; see  under  Quadruple  Alliance,  App.  ii.,  1718,  p.  446  ; gains  of  Sardinia 
at  Treaty  of  Vienna,  1735,  1738,  App.  ii. ; its  cessions  to  France,  App.  ii.,  1796; 
Piedmont  annexed  to  France,  App.  ii.,  1802  ; restorations  by  Congress  of  Vienna, 
p.  473  ; acquisitions  by  treaties  of  Villafranca  and  Zurich,  App.  ii.,  1859;  sub- 
sequent acquisitions  in  1860,  1861,  when  the  Kingdom  of  Italy  took  its  name, 
and  1870,  when  the  ecclesiastical  state  was  annexed.  (See  under  Treaty  of 
Villafranca,  App.  ii.,  1859. 

Savigny,  F.  von,  his  explanations  oi  jus  naturale,  § 10;  his  system  of  private 
international  law,  §§  71,  72,  73.  . 

Scheldt,  free  navigation  of  the,  § 62. 

Schmalkalden,  convention  and  league  of,  App.  ii.,  1530,  1531. 

Schomann  on  arbitration  in  Greece,  § 225. 

Scott,  Sir  William  (Lord  Stowcll),  on  consuls  holding  prize  courts,  § 149;  on 
occasional  contraband,  § 195  ; on  preemption,  § 197  ; on  penalt}'  for  contra- 
band, § 198  ; on  neutrals  carrying  despatches  of  belligerents,  § 199  ; also  cited, 
§ 192  ; on  continuous  voyage.s,  § 207. 

Sea,  the  high,  free,  § 59  ; near  the  coast,  its  relations  to  territory,  § 56  ; jurisdic- 
tion over  coast-sea,  § 57  ; case  of  the  Franconia,  ibid. ; freedom  of,  invaded  by 
Portugal,  Great  Britain,  Russia,  § 59 ; ceremonial  of,  § 84 ; disputes  concern- 
ing this,  § 85. 

Search,  right  of,  chiefly  a war  right,  applied  to  merchant  vessels,  § 208  ; how  to 
be  conducted,  ibid.;  duty  of  submitting  to  it,  ibid.;  treaties  define  it,  ibid.; 
limited  by  convoi’,  §§  209-211  (sec  Convoy).  Special  objects  of,  to  execute 
revenue  laws  in  peace,  § 212;  to  examine  vessels  suspected  of  piracy,  § 213; 
or  of  hostile  designs,  § 214  (case  of  the  Virginias,  ibid.)  ; or  vessels  not  for- 
eign suspected  of  being  slavers,  comp.  § 146 ; foreign  vessels  engaged  in  the 
slave-trade  not  subjects  of  search,  § 215;  unless  treaties  give  the  right;  at- 
tempts to  make  such  treaties,  §§  216-218  ; discussions  as  to  the  meaning  of 
•search  or  visit,  §§  219,  220 ; claim  of  Great  Britain  to  search  neutral  ships  for 
her  seamen  cannot  be  sustained,  § 221. 

Seizure  of  foreign  property  on  promise  of  compensation,  § 197  ; on  plea  of  neces- 
sity, ibid. ; seizure  of  ships  carrying  provisions,  opinions  on  the  right  of,  § 196  ; 
end. 

Selden,  John,  his  “Mare  Clausum,”  § 59,  p.  74. 

Senior,  N.  S.,  in  “ Edinburgh  Review,”  cited,  § 3. 

Seward,  W.  II. , his  measures  in  the  case  of  Arguelles,  § 78  ; offer  on  the  part  of 
the  United  States  to  accede  to  the  Declaration  of  Paris,  § 128  ; refused  to  re- 
ceive a commissioner  from  IMaximilian  in  Mexico,  § 89 ; on  the  affair  of  the 
Chesapeake,  § 174  ; on  recognition  of  belligerency,  § 180  ; on  blocking  up  har- 
bors in  revolted  territory,  as  a war  measure,  § 181. 


522 


INDEX. 


Ships,  Iiow  f:ir  territory,  § 58;  foreign  merchant  ships,  their  relations  to  French 
law  in  Freiuh  ports,  § 68  ; neutrals,  see  Neutral  Trade. 

Sieges,  licenses  of  soldiers  in,  § 1.38  ; may  be  checked,  ibid. 

Slavery,  § 74,  its  local  character  ; shaken  off  by  change  of  domicil,  ibid  ; will  not 
revive  by  return  to  prior  domicil ; compare  cases  decided  by  courts  of  Louisiana, 
ibid.,  note,  p.  110;  case  of  the  Creole,  ibid.,  cud. 

.Slave-trade,  prohibitions  of,  § 146;  made  piracy  by  the  United  Slates  in  1820, 
ibid.;  by  Great  Britain  in  1824,  ibid.;  made  such  by  treaties  of  several  states, 
ibid. ; but  not  by  international  law,  ibid.  Comp.  Treaty  of  Washington  in  1842, 
Search. 

Sovereigns,  treatment  of  on  foreign  soil,  §§  68,  83  ; marks  of  respect  to,  §§  83,  84; 
cannot  be  sued  in  foreign  courts,  § 68,  note,  p.  96  ; have  no  siiccial  privileges 
when  suing  iu  foreign  courts,  ibid. 

Sovereignty,  what  ? § 37  ; of  a state  differs  from  that  of  a prince,  § 38,  note ; in- 
volves independence  and  equality  of  ttate  powers  with  those  of  other  states, 
ibid. ; qu.alitied  iu  the  case  of  confederate  and  protected  states,  ibid. 

Spain,  Treaty  of  hladrid  with  France,  App.  ii.,  1526,  p.  430;  of  Cambray,  1529, 
ibid.  ; with  the  Dutch  tit  Munster,  1648,  acknowledging  their  iiuUpendcnce, 
]).  437 ; Peace  of  the  Pyrenees  with  France,  same  year  ; Treaty  of  Lisbon,  ac- 
knowledging the  independence  of  Portugal,  1668,  p.  438;  its  part  at  the  tre.a- 
ties  of  Nymwegen,  Ryswick,  and  Utrecht,  pp.  439,  440,  443,  444  ; arrangements 
in  consequence  of  the  wars  of  the  Quadruple  Alliance,  1718,  ]).  446 ; part  in  the 
Treaty  of  Vienna,  1735,  1738,  p.  447  ; of  Naples,  1759,  p.  448  ; in  the  “family 
compact,”  1 761,  p.  448  ; in  the  Peace  of  Paris,  1763,  p.  449  ; iu  the  Peace  of  Ver- 
sailles, 1783,  p.  452;  peace  with  France,  1795,  p.  454;  Treaty  of  St.  Ildef'onso, 
1800,  comp  with  Treaty  of  Madrid,  1801  (sec  under  Treaty  of  Luueville,  457)  ; 
secret  treaties  of  Fontainebleau  with  Najoleon,  1807,  p.  464;  refusal  of  Spain 
to  sign  the  final  act  of  the  Congress  of  Vienna,  1815,  p.  470,  comp,  the  act, 
13  ; interference  in  the. affiiirs  of  Spain,  §§  47,  48  ; treaty  of,  with  Great  Britain 
in  1817,  conceding  search  for  slavers,  §§  146,  216, 

Sponsio,  what,  and  whether  obligatory,  § 102. 

State,  what,  § 36 ; pirates  constitute  no  state,  ibid.;  the  Barbaiy  powers  now 
states,  ibid.,  and  § 144. 

Srory,  Judge,  on  domicil.  § 71  ; his  “ Conflict  of  Laws,”  § 73  ; on  jural  capacity,  as 
affected  by  domicil,  § 74  ; his  opinion  on  neutral’s  selling  armed  vessels  of  war, 
§ 193,  note  ; also  § 194  ; on  coasting  trade  opened  to  neutrals  iu  war,  § 201. 

St.  Pierre,  the  case  of,  § 203,  p.  368. 

St.  Pierre,  Castel  de,  the  Abbe',  on  public  arbitration,  § 226. 

Sully  (then  Marquis  of  Rosny),  case  of  servant  of,  § 95. 

Surety,  how  different  from  guaranty  ? § 109. 

Sweden,  gains  by  Peace  of  Westphalia,  App.  ii.,  1648,  p.  433  ; guarantees  the 
treaty,  p.  436  ; Wheaton’s  remark  on  this,  ibid. ; losses  by  Peace  of  Nystadt, 
1721,  p.  446  ; cessions  to  Russia  in  1809  by  Peace  of  Friedrichshamm,  p.  464; 
united  with  Norway  by  Peace  of  Kiel  in  1814,  p.  468. 

Switzerland,  independence  of  acknowledged  at  Peace  of  Westphalia,  p.  434  ; neu- 
tralized at  Congress  of  Vienna,  § 163  ; its  practice  of  furnishing  troop.s,  espe- 
cially to  France,  § 172;  jwobably  lost  the  right  to  do  this  by  being  neutral- 
ized, ibid. 


INDEX. 


523 


Tacitus  on  secret  warfare  cited,  § 133. 

Talleyrand  on  tlie  rules  of  war,  § 13ti,  note. 

Territory,  what,  how  acquired,  §§  S.n,  56  ; are  rc.'scls  territory,  § 58  ; mouths  of 
rivers,  hays,  neighboring  seas,  §§  56,  60. 

Thirty  Years’  War,  usages  of  war  in,  § 134  ; treatment  of  non-combatants  in,  § 
135  ; mode  of  supporting  armies  in,  ibid. ; fate  of  Magdeburg  and  Wurtzburg 
in,  § 13S. 

Title  to  capture  at  sea,  how  and  when  acquired,  §§  148,  149. 

Torpeiloes  used  in  modern  warfare,  § 133. 

Trade  closed  in  peace  but  open  in  war,  §§  200,  201  ; Judge  Story  holds  coasting- 
trade  proper  to  be  justly  visited  with  confiscation,  § 201  ; llauUfeuille  on  the 
rule  of  1756,  ibid. ; other  opinions,  ibid. 

Treaty  or  contract,  riglit  of,  § 101  ; witli  whom  made,  ibid. ; by  whom,  § 102  ; in  a 
close  confederation,  only  by  the  central  power,  ibid.  ; made  by  a lituited  sovereign, 
how  far  binding,  § 103;  e.xtreme  case  of,  in  a confederation,  ibid.;  obtained  by 
fraud  or  by  force,  tiot  binding,  § 104  ; cannot  bind  to  do  wrong,  § 105  ; kinds  of, 

§ 103  ; treaties  of  alliance,  § 107;  defensive  alliance,  what,  ibid. ; of  eonfedera- 
tioti,  § 103;  of  gitaranty,  § 109.  (See  Guaranty.)  Confirinatioti  of  treaties  by 
soletnn  forms,  hostages,  ])ledges,  § 110.  (See,  also.  Hostages  ) Treaties  binding 
when  agreed  upon,  if  nothitig  is  said  to  the  contrary,  § 111  ; can  ratification  bo 
withheld,  after  full  power  is  given  to  an  agent,  ibid. ; violation  of,  §112;  iuter- 
pretiition  of,  § 113  ; language  generally  used  in,  § 158. 

Treaties  referred  to  or  mentioned  in  Appendix  ii.  (For  treaties  of  peace,  see 
Peace.  Comp  , also,  Alli.ance,  Convention,  Congress.)  Treaty  of  Madrid,  § 104, 
App.  ii.,  1526;  Cambr.ay,  1529;  Crespy,  1544;  Capitulation  of  Wittenburg, 
1547  ; Fassau,  1552  ; Augsburg,  1555  ; Cherasco,  1631  ; Oliva  and  Copenhagen, 
1660  ; triple  alliance,  1668  ; Lisbon,  same  year ; partition  treaties,  1698  and  1700  ; 
barrier  treaties  in  1709,  1712,  1715,  pp.  444,  445  ; triple  alliance,  1717;  quad- 
ruple, 1718;  Treaty  of  Vienna,  173.5,  1738  ; of  Naples,  1759;  the  family  com- 
pact, 1761  ; Treaty  of  Genoa,  giving  up  Corsica  to  France,  1768  ; partitions  of 
Poland,  1772,  1793,  1795;  first  armed  ncutiality,  1780;  declaration  of  Pilnitz 
1791;  Congress  of  Rastadt,  1797  second  armed  neutrality,  1800;  Treaty  of 
France,  ceding  Louisiana  to  the  United  States,  1803  ; treaties  of  Fontainebleau, 
1807  ; various  treaties  and  coalitions  before  the  downfall  of  Napoleon,  1812, 
1814,  pp.  466-469  ; convention  of  Ackerman,  1826;  Treaty  of  London,  on  the 
affairs  of  Greece,  1827  ; treaty  separating  Belgium  and  Holland,  1831  ; conven- 
tion of  London,  touching  a king  for  Greece,  1832  ; convention  of  Unkiar-Skelessi,  , 
promising  aid  from  Russia  to  Turkey  against  Mchemet  All  and  his  son,  1833  ; 
Treaty  of  AVashington,  1842  ; treaty  between  Italian  jirinces,  1844  ; Treaty  of 
Guad.alupe-Ilidalgo  ceding  Mexican  territorv  to  the  United  Statc.s,  1848  ; several 
treaties  of  China  with  Christian  powers,  1858;  treatv  relating  to  a king  for 
Greece,  1863  ; treaty  uniting  Ionian  islands  with  Greece,  1864  ; treaties  relating 
to  tlie  difficulties  in  Schleswig-Holstein,  see  under  1864;  convention  of  Gastein, 
1865;  of  Nikolsburg  in  1866  ; of  AVashington  for  settling  claims  and  difficulties 
between  the  United  States  and  Great  Britain,  1871. 

Trent,  the,  case  of,  § 199. 

Truce,  or  armistice,  § 156 ; general  and  special,  ibid. ; by  whom  made,  ibid. ; time 
of  beginning  of,  § 157  ; what  ctin  be  done  in  a truce,  ibid. ; especially  in  the  cas« 
of  be.sieged  places,  ibid. 


524 


INDEX. 


Turkey  is  in  the  international  system  of  Europe,  § 5 ; its  integrity  guarantied  by 
the  signatories  to  the  Peace  of  Paris,  App.  ii.,  1855;  its  rights  over  the  straits 
confirmed  as  part  of  the  public  law  of  Europe,  § 61  ; treaties  of  London,  1840, 
1841  ; Peace  of  Carlowitz  rvith  the  emperor,  App.  ii.,  1699  ; of  Passarowitz 
with  the  same,  1718,  ilhd. ; its  various  treaties  with  Russia.  (See  Russia,  and 
the  years  1774,  1792,  1812,  1826,  1829,  1833,  1856.)  Peace  of  Paris  with  the  six 
powers,  App.  ii.,  1856  ; negotiations  then  and  afterwards  as  to  the,  principalities, 
sec  under  that  treaty;  Treaty  of  Fan  Stefano,  1878  ; of  Berlin,  ibid.  (See 
under  those  years.) 

Twiss,  Sir  Travers,  on  the  effect  of  war  upon  previous  treaties,  § 160;  on  arbitra- 
tion, § 227  ; cited,  also,  §§  202,  208. 

Ulpian,  on  jus  nalundc,  as  explained  by  Savigny,  § 10 ; no  postliminy,  when 
]iirates  are  the  captors,  § 146,  note. 

Union  of  Utrecht,  in  1579,  Apj).  ii  , p.  432. 

United  St.atcs  of  Americ.i,  their  independence  acknowledged  at  Treaty  of  Ver- 
sailles, Ap)).  ii.,  1783  ; Treaty  with  Great  Britain  in  1794,  § 78  (p.  118),  § 124 
(p.  203) ; Treaty  of  Ghent,  1814,  §§  59,  217  ; convention  of  1818,  on  the  fisheries, 
§ 59  ; Reciprocity  Treaty  of  1854,  ibid. ; Treaty  of  Washington  in  1842,  § 78  ; 
Treaty  of  Washington  in  1862,  § 219  (on  the  l ight  of  search)  ; treaty  with  Prus- 
sia in  1785,  §§  128,198;  Treaty  of  Washington  in  1871  (see  Washington)  ; af- 
fairs with  Denmark,  §§  61,  160,  p.  302,  § 211  ; naturalization  in,  § 70;  right  of 
negotiation,  to  whom  pertaining,  in,  § 37  ; central  government  responsible  for 
injuries  committed  by  states,  ibid.;  limits  on  treaty-making  power  of,  § 103; 
position  as  to  hostile  jiropcrty  in  the  eotinlry,  § 124;  treaty  with  England  in 
1794  on  this  point,  ibid. ; attitude  as  to  privateering,  § 128;  as  to  neutrality, 
§§  176,  178  ; as  to  declaration  of  Paris,  §§  128, 190  ; as  to  freedom  and  liabilities 
of  neutral  trade,  § 191  ; as  to  preemption,  § 197  ; as  to  law  of  blockade,  § 206; 
as  to  belligerent  convoy,  § 211  ; as  to  search,  § 217  et  seq. ; law  of,  on  tranship- 
ment of  goods,  § 212  ; naturalization  arrangements,  § 70;  extradition  arrange- 
ments, § 78. 

Valextixian  I.,  the  Emperor,  law  of,  § 193. 

Valiti,  § 56. 

Vattel,  App.  i.,  p.  420  ; often  cited,  as  §§  26,  63,  68,  71,  100,  102,  107,  109,  110, 
113,  118,  122,  124,  136,  157,  159,  169,  171,  196. 

Verge,  on  De  Martens,  cited  §§  124,  128  note. 

Verona,  see  Congress. 

Virginiun,  case  of,  § 214. 

Voyages,  continuous,  § 207.  The  doctrine  originated  by  Sir  W.  Scott,  in  rela- 
tion to  neutrals  stopping  at  a neutral  port,  on  a voyage  between  belligerent 
ports,  ibid. ; extended  to  ve.ssels  carrying  contraband,  by  courts  of  the  United 
States  in  war  of  secession,  ibid. 

War,  § 114  cf  seq.;  a just  war,  § 115  ; who  is  to  judge?  ibid. ; nations  not  bound 
by  international  law  to  submit  to  arbitration,  ibid. ; ally  may  judge  of  lawful- 
ness of,  ibid.  ; principal  reasons  for  a just  war,  § 116  ; kinds  of,  § 117  ; meas- 
ures, falling  short  of,  § 118  (see  Embargo,  Retorsion,  Reprisals)  ; Pacific  block- 


INDEX. 


525 


ade,  § 119  ; declaration  of,  § 120  ; declaration  in  later  times  not  always  observed, 
§ 121 ; wliat  notices  of  war  must  be  given,  § 122  ; effects  of  a state  of,  § 123; 
is  a hostile  relation  of  states,  not  of  individuals,  ibid. ; but  implies  ce.ssatiou  of 
intercourse  boiween  the  subjects  of  the  belligerents,  ibid. ; license  to  trade  with 
enemy’s  subjects,  ibid.  ; property  of  individuals  confiscable,  but  not  now  often 
confiscated,  § 124;  nho  has  a right  to  wage  war,  § 125;  treatment  of  hostile 
property  on  the  laud  and  on  the  sea,  § 126;  sea  warfare,  §§  127-129  (see  Pri- 
vateers) ; rules  of  war,  especially  on  the  land,  §§  130-142  ; vagueness  of, 
§ 130;  but  growing  in  mildness,  ibid.;  causes  of  this,  ibid.  ; fundamental  rules 
of,  § 131  ; retaliation,  § 132  ; unlawful  ways  of  injuring  enemies  in  war,  § 133; 
treatment  of  captured  persons,  § 1.34;  of  irregular  troops,  ibid.  ; of  non-com- 
batants and  their  property,  § 135;  summing  up,  § 136;  cspeci.ally  as  to  contri- 
butions and  requisitions,  ibid. ; treatment  of  public  property,  § 137  ; usage  in 
sieges  and  storms  of  forts,  § 13S;  laws  of  war  on  tlie  sea,  and  in  descents 
upon  the  coast,  §139;  commercia  belli,  § 140;  .spies,  § 141  ; modern  endeavors 
to  mitigaie  the  evil  of  warfare,  § 142  ; Dr.  Lieber’s  rules  jirepared  for  tlie  gov- 
ernment of  the  United  States,  ibid. ; rules  of  the  convention  at  Geneva  in  1S64, 
ibid.;  of  that  at  St.  Petersburg  in  1868,  ibid.;  the  convention  at  Brussels  in 
1874  ; rules  agreed  upon,  ibid.,  pp.  236-239  ; but  opposed  by  some  states,  and 
not  carried  into  effect,  ibid.  ; opinion  of  the  “Institut  du  Droit”  upon  them, 
ibid.,  p.  239.  Civil  war,  § 143;  wars  witli  half  civilized  or  uncivilized  nations, 
ibid.;  with  pirates,  § 141;  who  arc  ]iratcs1  ibid.;  crews  of  rebel  vessels  in 
regular  war  are  not  pirates,  § 145  ; the  slave-trade  is  not  piracy,  except  by  the 
laws  of  patticular  states,  § 146;  allies  in  war  ought  not  to  make  peace  sepa- 
rately, § 159  ; war  ends  certain  treaties,  but  not  others,  § 160. 

IVard,  Robert,  “ History  of  the  Law  of  Nations,”  §§  8,  34  ; often  cited,  especially 
§§  52,  88,  95,  96,  104,  118,  120,  133;  inquiry  into  the  manner  in  which  wars 
have  commenced,  etc.,  § 121. 

Warden,  D.  B.,  on  consuls,  § ICO. 

Warnkbnig,  Prof.  L.  A.,  on  jus  alhinngii,  § 67  ; Ajjp.  i.,  p.  414. 

Wasliington,  Treaty  of,  in  1842,  on  extradition,  § 78;  on  the  right  of  search, 
§ 218.  Treaty  of,  in  1871,  summary  of,  App.  ii.,  1871 ; on  the  Alabama  case, 
articles  1-17  ; on  the  fisheries,  etc.,  articles  18-33  ; on  part  of  the  boundary  line 
on  the  Pacific,  articles  34-42  ; rules  for  the  arbitration  at  Geneva,  p.  499  ; de- 
cision of  the  court  of  arbitration  at  Geneva,  ibid.  ; decision  of  Emperor  of  Ger- 
many on  the  boundary  lino,  in  1872,  ]).  471;  decision  on  the  point  submitted 
concerning  the  fisheries,  etc.,  in  1877,  ibid. 

Webster,  Daniel,  on  .ships  driven  into  foreign  harbors,  § 63,  end  ; on  the  case 
of  the  Creole,  § 74,  end;  on  a complaint  of  Austria  against  the  United  States, 
§ 82;  on  the  meaning  of  the  right  of  search,  § 219;  on  the  impressment  of 
British  subjects  from  neutral  vessels  in  war,  § 221.  Sec,  also,  § 174. 

Wheaton,  Henry,  App.  i.,  p.  422;  his  “History  of  International  Law,’  §§  49,  47, 
60.  200,  221,  225,  229  ; App.  i.,  pp.  417,  419  ; his  “Elements,”  very  often  cited, 
as  in  §§  26,  37,  42,  51,  59,  60,  62,  69,  91,  93,  98,  100,  107,  109,  111,  159,  160, 
183,  191,  195,  199,  201,  203,  208,  211,  219,  226. 

Whewell,  W.,  § 17,  note. 

Wicquefort,  Ahr.  de,  case  of,  § 91. 

Wildman,  Richard,  cited,  §§  12,  16  (note),  148 ; on  burning  prizes  taken  at  sea. 


626 


INDEX. 


§ 148 ; on  the  ransom-contract,  taken  in  the  recaptured  vessel,  § 150 ; cited,  § 152 ; 
on  licenses  to  trade,  § 155;  on  cruisers’  violations  of  neutral  territory,  § 174; 
on  treatment  of  vessels  engaged  in  the  enemy’s  coasting  trade,  when  captured, 
§ 186. 

Wolf,  Christian  von,  App.  i.,  p.  419,  and  Wheaton’s  remarks  on  his“Institu- 
tiones  juris  Naturaj  ct  Gentium,”  and  ‘‘Jus  Gentium  ” (Hist.,  pp.  176-183). 

Writers  of  works  relating  to  international  law,  a selection  of,  App.  i.,  pp.  413- 
429  ; on  its  literature  and  history,  p.  413  ; collections  of  early  sea-laws,  414  ; of 
treaties,  415,  416,  427  ; diplomatic  history,  416;  (1)  treatises  on  the  science  in 
general,  before  Grotins,  416,  417  ; from  Grotius  to  J.  J.  Moser,  (especially  Gro- 
tius,  417,  418;  Pnffendorf,  418,  Rachel,  Wolf,  419,  Vattel  (under  Wolf),  Byn- 
kershoek,  420)  ; from  Moser  to  1860,  421-427  ; (especially  Moser,  G.  F.  de 
Martens,  Kliiber,  420,  Bentham,  Kent,  Wheaton,  Manning,  Hcffter,  AVildman, 
422,  Phillimore,  Twiss,  423  ; (2)  Essays  and  ’Practs,  (a)  on  ambassadors  and 
consuls,  423  ; (!>)  on  private  international  law,  424  ; (c)  on  property  of  states, 
sovereignty  over  seas  and  rivers,  424,  425;  {d)  on  maiitime  law,  rights  of  neu- 
trals, capture,  etc.,  425,  426.  Collections  of  treaties,  especially  of  particular  na- 
tions, 429.  Writers  since  1860  arranged  alphabetically,  427-429. 

ZoucH,  Richard,  § 9 ; App.  i.,  p.  418. 


'mJ 


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MARK  HOPKINS,  D.D.,  LL.D.,  late  President  of  Williams 
College.  12mo,  S1.73. 

This  is  a model  of  the  developing  method  as  applied  to  intellectual 
science.  The  work  is  on  an  entirely  new  plan.  It  presents  man  in 
his  unity,  and  his  several  faculties  and  their  relations  are  so  presented 
to  the  eye  in  illustrative  diagrams  as  to  be  readily  apprehended. 
The  work  has  come  into  very  general  use  in  this  country  as  a man- 
ual for  instruction,  and  the  demand  for  it  is  increasing  every  year. 

GENERAL  S.  C.  ARMSTRONG,  Principal  of  Uampton  Institute. — "lam 
glad  of  the  opportunity  to  express  my  high  appreciation  of  Dr.  Hopkins’  Outline 
Study  of  Man.  It  has  done  more  for  me  personally  than  any  book  besides  the 
Bible.  More  than  any  other  it  teaches  the  greatest  of  lessons,  Unmo  thyself.  For 
over  ten  years,  I have  made  It  a text  book  la  tbe  Senior  Class  of  this  school.  It 
Is,  I think,  the  greatest  and  most  useful  of  the  books  of  the  greatest  of  our  Am- 
erican educators.  Rev.  Dr.  Hopkins,  and  Is  destined  to  do  a great  work  in  forming 
not  only  the  Ideas  but  the  character  of  youth  in  America  and  la  other  parts  of  the 
world.” 

PROF.  ADDISON  BALLARD,  Of  Lafayette  College.— "I  have  for  years  used 
Dr.  Hopkins’  Outline  Study  of  Man,  la  connection  with  his  Law  of  Love,  as  a text 
book  lor  oar  Senior  Classes.  I have  done  this  with  unfailing  success  and  with 
increasing  satisfaction.  It  is  of  Incalculable  advantage  to  the  student  to  come 
under  the  influence,  through  his  books,  of  this  great  master  of  thought  and  of  style. 
I cannot  speak  of  Outline  Study  In  terms  of  too  hearty  commendation.’’ 

THE  LAW  OF  LOVE,  AND  LOVE  AS  A LAW;  Christian 
Ethics.  By  MARK  HOPKINS,  D.D.,  LL.D.,  latd  President 
of  Williams  College.  12mo,  SI. 75. 

This  work  is  designed  to  follow  the  author's  Outline  t^tuebj  of  Man, 
As  its  title  indicates  it  is  entirely  an  exp  isiliou  of  the  crrdinal  precept 
of  Christian  philosophy  in  harmony  with  nature  and  cn  the  basis  of 
reason.  Like  the  treatise  on  mental  philosophy  it  is  adapted  with 
unusual  skill  to  educational  uses. 

It  appears  in  a new  edition  which  has  been  in  part  re-written  in 
order  to  bring  it  into  closer  relation  to  his  Outline  Study  of  Man,  of 
which  work  it  is  really  a continuation.  More  prominence  has  been 
given  to  the  idea  of  Rights,  but  the  fundamental  doctrines  of  the 
treatise  have  not  been  ehanged. 


STANDARD  TEXT  BOOKS. 


FINAL  CAUSES.  By  PAUL  JANET,  Membar  of  the  French 
Academy.  With  a Preface  by  Robert  Flint,  D.D.,  LL.D. 
From  second  French  edition.  Ovo,  S2.50. 

PROF.  FRANCIS  L.  PATTON,  of  Princeton  Theological  Seminary. — "I  re- 
gard Janet’s  ‘ Final  Causes  ’ as  Incomparably  the  best  thing  in  literature  on  the 
subject  ot  which  It  treats,  and  that  It  ought  to  be  m the  hands  oi  every  man  who 
has  any  Interest  In  the  present  phases  of  the  theistlc  problem.  I have  recom- 
mended It  to  my  classes  In  the  seminary,  and  make  constant  use  cf  It  la  my  In- 
structions.” 

NOAH  PORTER,  D.D.,  LL.D.,  late  Presictent  Of  Tale  CoUege. — “ I am  deUghtod 
that  you  have  published  Janet’s  ‘Final  Causes’ In  an  Improved  form  and  at  a 
price  which  brings  It  within  the  reach  of  many  who  desire  to  possess  it.  It  Is,  in 
my  opinion,  the  most  suggestive  treatise  on  this  Important  topic  which  Is  access- 
ible In  our  language.” 

THE  HUMAN  INTELLECT.  By  NOAH  PORTER,  D.D..  LL.D., 

late  President  of  Yale  College.  With  an  Introduction  upon 
Psychology  and  the  Human  Soul.  8vo,  $5.00. 

The  author  has  not  only  designed  to  famish  a text  hook  which  shall 
be  sufficiently  comprehensive  and  scientific  to  satisfy  the  wants  of  the 
many  students  of  psychology  and  speculative  philosophy  who  are  found 
in  our  higher  institutions  of  learning,  but  also  to  prepare  a volume 
which  may  guide  the  advanced  student  to  a clear  understanding  and  a 
just  estimate  of  the  questions  which  have  perpetually  appeared  and 
reappeared  in  the  history  of  philosophy. 

THE  BRITISH  QUARTERLY  REVIEW. — “President  Porter's  work,  the  result 
of  thirty  years’  professional  labor.  Is  not  only  the  most  important  philosophical 
work  that  has  appeared  In  our  language  since  Sir  ’WlUIam  Hamilton’s,  but  its 
form  as  a manual  makes  It  Invaluable  to  students.” 

THE  PRINCETON  REVIEW. — “After  a careful  examination  of  tliis  truly  great 
work,  we  are  ready  to  pronounce  It  the  most  complete  and  exhaustive  exhibition 
of  the  cognitive  faculties  of  the  human  soul  to  be  found  in  our  language,  and,  so 
far  as  we  know,  in  any  language.  The  work  Is  a monument  cf  the  author’s  in- 
clght.  Industry,  learning,  and  judgment ; one  of  the  great  productions  cf  our 
time ; an  honor  to  our  country,  and  a fresh  proof  that  genuine  philosophy  has  not 
died  out  among  us.” 

ELEMENTS  OF  INTELLECTUAL  SCIENCE.  A Manual  for 
Schools  and  Colleges.  By  NOAH  PORTER,  D.D,,  LL.D., 
late  President  of  Yalo  College.  Ovo,  $3.00. 

This  is  an  abridgment  of  the  a .thor’s  “ Human  Intellect,”  contain- 
ing all  the  matter  necessary  for  use  in  the  class-room,  and  has  been  in- 
troduced as  a text-book  in  Yale,  Dartmouth,  Bowdoin,  Oberliu,  Bates, 
Hamilton,  Vassar,  and  Smith  Colleges  ; Wesleyan,  Ohio,  Lehigh,  and 
Wooster  Universities,  and  many  other  colleges,  academies,  normal  and 
high  schools. 

THE  NEW  YORK  WORLD.— “The  abridgment  Is  very  well  done,  the  state- 
ments being  terse  and  perspicuous.” 

THE  NEW  YORK  TRIBUNE.— “ Presents  the  leading  facts  of  intellectosd 
science,  from  the  author’s  point  of  view,  with  clearness  and  vigor.” 


CHAELES  SCRIBNERS  SONS' 


ELEMENTS  OF  MORAL  SCIENCE,  Theoretical  and  Practical. 
By  NOAH  PORTER,  D.D.,  LL.D.,  late  President  of  Yale 
College.  8vo,  $3.00. 

This  treatise  is  intended  primarily  for  the  use  or  college  and  uni- 
versity students,  and  is  prepared  with  reference  to  the  class-room.  It 
is  in  two  parts : the  first  treats  with  great  fullness  “ The  Theory  of 
Duty,"  and  unfolds  comprehensively  the  psychology  of  the  moral 
powers  and  the  nature  of  the  moral  relations.  The  second  division, 
“ The  Pmetice  of  Duty  or  Ethics,"  takes  up  the  different  classes  of 
duties  with  a view  to  the  practical  application  of  the  principles  of 
moral  science  to  the  questions  arising  in  every  department  of  human 
activity.  In  every  respect  President  Porter’s  work  is  abreast  of  the 
time,  and  leaves  no  controverted  point  undefended. 

GEORGE  S.  MORRIS,  Pro/essor  o/i/tfiics,  Urdversity  of  Mic7iigan.—“ l'ba,Y& 
read  the  work  with  great  Interest,  and  parts  of  It  with  enthusiasm.  It  is  a vast 
Improvement  on  any  cf  the  current  text  books  of  ethics.  It  is  toierant  and 
catholic  in  tone;  not  superficially,  but  soundly,  inductive  in  method  and  ten- 
dency, and  rich  in  practical  suggestion.” 

E.  G.  ROBINSON,  President  Brown  “ It  has  all  the  distinguish- 

ing marks  of  the  author’s  work  on  ‘ The  Human  Intellect,’  is  fuli  and  comprehen- 
sive in  its  treatment,  dealing  largely  with  current  discussions,  and  very  naturally 
follows  it  as  a text  book  for  the  class-room.” 

JULIUS  H.  SEELYE,  President  Amlwrst  College. — “It  is  copious  and  clear, 
with  ample  scholarship  and  remarkable  insight,  and  I am  sure  that  all  teachers 
cf  Moral  Science  will  find  it  a valuable  aid  In  their  instructions.” 

OUTLINES  OF  MORAL  SCIENCE.  Dy  ARCHIBALD  ALEX- 
ANDER, D.D.,  LL.D.  12mo,  $1.50. 

This  book  is  elementary  in  its  character,  and  is  marked  by  great 
clearness  and  simplicity  of  style.  It  is  intended  to  lay  the  foundations 
and  elucidate  the  i rinciples  of  the  Philosophy  of  Morals.  It  is  widely 
used  in  colleges  and  other  institutions  of  learning,  and  is  specially 
adapted  for  students  whose  age,  or  the  time  at  whose  disposal,  does 
not  permit  the  use  of  the  more  extended  and  abstruse  works  on  ethics. 

THE  THEORY  OF  f.lORALS.  By  PAUL  JANET,  Member  of  the 
French  Academy.  Translated  undar  the  supervision  of 
President  Noah  Porter.  8vo,  S2.50. 

Prof  Janet  in  this  book  gives  us  not  only  a clear  and  concise  exam- 
ination of  the  whole  study  of  moral  science,  but  he  has  introduced  into 
the  discussion  many  elements  which  have  hitherto  been  too  much 
neglected.  The  first  principles  of  moral  science  and  the  fundamental 
idea  of  morals  the  author  describes  with  much  precision,  and  presents 
an  interesting  and  systematic  exposition  of  them. 

SCIENCE. — “The  book  has  lucidity  and  is  full  of  learning.  It  is  hardly  extrav- 
agant to  say  that  so  clear  and  picturesque  a treatise,  in  the  hands  of  an  alert 
teacher,  might  save  the  study  of  ethics  from  its  almost  inevitable  fate  of  being 
very  duU.” 


CHARLES  SCRIBNER'S  SONS' 


EPOCHS  OF  HISTORY. 

CHARLES  KENDALL  ADAMS,  President  of  Cornell  Pniversity.—" A Series 
of  concise  and  carefully  prepared  volumes  on  special  eras  of  history.  Each  is 
devoted  to  a group  of  events  of  such  Importance  as  to  entitle  it  to  be  regarded  as 
an  epoch.  Each  Is  also  complete  in  Itself,  and  has  no  especial  conncctlcn  vrith 
the  other  members  of  the  series.  The  works  are  aU  written  by  authors  selected 
by  the  editor  on  account  of  some  especial  qualifications  for  a portrayal  of  the 
period  they  respectively  describe.  The  volumes  form  an  excellent  collection, 
especially  adapted  to  the  wants  of  a general  reader.” 

flOAH  PORTER,  PresidCTi;  0/ Tale  Colteffe.—" The  ‘ Epochs  of  History  ’ seem 
to  oe  to  have  been  prepared  with  knowledge  and  artistic  skill  to  meet  the  wants 
of  a large  number  of  readers.  To  the  young  they  furnish  an  outline  or  compen- 
dium which  may  cerve  as  an  Introduction  to  more  extended  ctudy.  To  those 
who  arc  older  they  present  a convenient  sketch  of  the  heads  of  the  knowledge 
which  they  have  already  acquired.  The  outlines  are  by  no  means  destitute  of 
cpirit,  and  may  be  used  with  great  profit  for  family  reading,  and  in  select  classes 
cr  reading  clubs.” 

D'SHOP  JOHN  F.  HURST,  Ex-Presiclent  of  Dre;o  The  ological  Seminary.— 
“ It  appears  to  me  that  the  idea  of  Morris  in  his  Epochs  is  strictly  in  harmony 
with  the  philosophy  of  history— namely,  that  great  mevemonts  should  be  treated 
not  according  to  narrow  geographical  and  national  limits  and  distinction,  but 
universally,  according  to  their  place  in  the  general  life  of  the  worid.  The  hlstor- 
loai  Maps  and  the  copious  Indices  are  welcome  additions  to  the  volumes.” 

THE  NATION. — “ The  volumes  contain  the  ripe  results  of  the  studies  of  men 
who  arc  authorities  in  their  respective  fields.” 


EPOCHS  OF  ANCIENT  HISTORY.  A series  of  books  narrating 
the  History  of  Greece  and  Rome,  and  of  their  relations  to 
other  countries  at  successive  epochs.  Edited  by  Rev.  C.  W. 
COX,  and  CHARLES  SANKEY,  M.A.  Eleven  volumes, 
16mo,  with  41  Maps  and  Plans.  Sold  separately.  Price  per 
. vol.,  $1.00.  The  set,  Roxburgh  style,  gilt  top,  in  bos,  $11.00. 
TROT— ITS  LEGEND,  HISTORY,  AND  LITERATURE.  By  S.  G.  W.  Benjamin. 
THE  GREEKS  AND  THE  PERSIANS.  By  G.  W.  Cox. 

THE  ATHENIAN  EMPIRE.  By  G.  W.  Cox. 

THE  SPARTAN  AND  THEBAN  SUPREMACIES.  By  Charles  Sanket. 

THE  MACEDONIAN  EMPIRE.  By  A.  M.  Curteis. 

EARLY  ROME.  By  W.  Ihne. 

ROME  AND  CARTHAGE.  The  Punic  Wars.  By  R.  Bosworth  Smith. 

THE  GRACCHL  MARIUS  AND  SULLit.  By  A.  H.  Beeslet. 

THE  ROMAN  TRIUMVIRATES.  By  Charles  Merivale. 

THE  EARLY  EMPIRE.  By  W.  Wolfe  Capes. 

THE  AGE  OF  THE  ANTONINES.  By  W.  W’Clfe  Capes. 


STANDARD  TEXT  BOOKS. 


EPOCHS  OF  MODERN  HISTORY.  A series  of  books  narrating 
the  History  of  England  and  Europe  at  successive  epochs 
subsequent  to  the  Christian  era.  Edited  by  EDWARD  E. 
MORRIS.  Seventeen  volumes,  16mo,  with  74  Maps,  Plans, 
and  Tables.  Sold  separately.  Price  per  vol.,  SI. 00.  The 
set,  Roxburgh  style,  gilt  top,  in  box,  S17.00. 

THE  BEGESTNUSTG  op  the  middle  ages.  By  K.  W.  Czc-iCH. 

THE  NORMANS  IN  EUROPE.  By  A.  H.  JOHNSON. 

THE  CRUSADES.  By  G.  W.  Cox,  M.A. 

THE  EARLY  PLANTAGENETS.  By  Wm.  Sthbbs. 

EDWARD  HI.  By  W.  Warbukton. 

THE  HOUSES  OF  LANCASTER  AND  YORK.  By  Jam~s  Gairdneb. 

THE  ERA  OF  THE  PROTESTANT  REVOLUTION.  By  Frederic  Seebohm. 
With  Notes  on  Boots  In  English  relating  to  the  Reformation.  Ey  Prof. 
George  P.  Fisher,  D.D. 

THE  EARLY  TUDORS.  Henry  VH.;  Henry  VUI.  ByC.  E.  Moserly. 

THE  AGE  OP  ELIZABETH.  By  M.  Creighton. 

THE  THIRTY  TEARS’  WAR,  161S-1C43.  By  Samuel  Eattson  Gardiner. 

THE  PURITAN  REVOLUTION.  Ey  Samuel  Rawson  Gardiner. 

THE  FALL  OF  THE  STUARTS.  By  Edward  Hale. 

THE  AGE  OP  ANNE.  By  Edward  E,  Morris. 

THE  EARLY  HANOVERIANS.  By  Edward  E.  Morris. 

FREDERICK  THE  GREAT.  By  P.  W.  Longman. 

THE  FRENCH  REVOLUTION  AND  FIRST  EMPIRE.  By  V/illiam  O’Connor 
Morris.  With  Appendix  by  Andrew  D.  White,  LL.D. 

THE  EPOCH  OP  REFORM,  1830-1850.  By  Justin  McCarthy. 

THE  HISTORY  OF  ROME,  from  the  Earliest  Time  to  the  Period 
of  Its  Decline.  By  Dr.  THEODOR  MOMMSEN.  Translated, 
with  the  author’s  sanction  and  additions,  by  W.  P.  Dickson, 
D.D.,  LL.D.  With  an  Introduction  by  Dr.  Leonhard  Schmitz. 
Reprinted  from  the  Revised  London  Edition.  Four  volumes 
crown  8vo,  gilt  top.  Price  per  set,  $8.00. 

LONDON  TIMES.— “A  work  Of  the  very  highest  merit;  its  learning  is  exact 
and  profound ; its  narrative  full  of  genius  and  Bkill : its  descriptions  of  men  are 
admirably  vivid.  We  wish  to  place  on  record  our  opinion  that  Dr.  Mommsen’s  is 
by  far  the  best  history  of  the  Decline  and  Fall  of  the  Roman  Commonwealth.” 

DR.  SCHMITZ.— “Since  the  days  of  Niebuhr,  no  work  on  Roman  History  has 
appeared  that  combines  so  much  to  attract.  Instruct,  and  charm  the  reader.  Its 
style— a rare  quality  in  a German  author— is  vigorous,  spirited,  and  animated 
Professor  Mommsen’s  work  can  stand  a comparison  with  the  noblest  productions 
of  modern  history.” 


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